Florida Southeast Connection, LLC v. 6.585 Acres of Land, More or Less, in Polk County, Florida et al

Filing 38

ORDER: Plaintiff Florida Southeast Connection, LLC's Motion for Partial Summary Judgment (Doc. # 6 ) is GRANTED. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 5/11/2016. (BLB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FLORIDA SOUTHEAST CONNECTION,
LLC,
Plaintiff,
v.

Case No. 8:16-cv-657-T-33TGW

6.585 ACRES OF LAND, MORE OR
LESS, IN POLK COUNTY,
FLORIDA, APPLIED BUILDING
DEVELOPMENT COMPANY –
OAKHILLS INC., et al.,
Defendants.
______________________________/
ORDER
This cause comes before the Court upon consideration of
Plaintiff Florida Southeast Connection, LLC’s (FSC) Motion
for Partial Summary Judgment (Doc. # 6). FSC moves 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 Composite
Exhibit 3 to the Complaint (the “Easements”). A hearing on
FSC’s Motion was held on May 11, 2016. Being otherwise fully
informed, the Court grants the Motion.
I.

Background
On

February

2,

2016,

the

Federal

Energy

Regulation

Commission (FERC) issued an Order granting FSC a Certificate

1

of Public Convenience and Necessity (FERC Certificate) that
authorizes FSC to construct and operate the Florida Southeast
Connection Project (the Project). (Doc. # 1-4). To construct
the Project in accordance with its FERC Certificate, FSC must
acquire the Easements, (Doc. # 6-1 at ¶ 13), which are located
within the jurisdiction of this District Court. As part of
the certification process, FSC submitted and FERC approved
alignment sheets showing the final alignment of the Project.
(Id.

at

¶

identified,

14).
and

FSC

prepared

depicted

in

the

Easements

Composite

Exhibit

described,
3

to

the

Complaint to conform to the FERC-approved alignment sheets.
(Id. at ¶ 15). Prior to filing suit, FSC was unable to acquire
the Easements by contract.
FSC filed suit against the land at issue, as well as
Applied Building Development Company – Oakhills Inc., Israel
Discount Bank of New York, Ltd., and Bank Hapoalim B.M. (Doc.
# 1). Shortly thereafter, FSC filed the pending Motion. (Doc.
# 6). Service was effected as to Bank Hapoalim and Israel
Discount Bank on March 29, 2016. (Doc. ## 15-16). And, service
was effected on Applied Building on April 4, 2016. (Doc. #
14). As of the hearing held on the Motion, no response in
opposition was filed.
II.

Legal Standard

2

Summary judgment is appropriate “if the movant shows
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). A factual dispute alone is not enough to
defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude
a grant of summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742
(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if
it may affect the outcome of the suit under the governing
law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997). The moving party bears the initial burden of showing
the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). “When a moving party has discharged
its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,

3

answers

to

interrogatories,

and

admissions

on

file,’

designate specific facts showing that there is a genuine issue
for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to
be true and all reasonable inferences must be drawn in the
non-moving party’s favor. Shotz v. City of Plantation, Fla.,
344 F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact
finder evaluating the evidence could draw more than one
inference from the facts, and if that inference introduces a
genuine issue of material fact, the court should not grant
summary judgment. Samples ex rel. Samples v. City of Atlanta,
846 F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron &
Steel Works, Inc. v. Emp’rs Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)). However, if the non-movant’s response
consists

of

conclusional

nothing

“more

allegations,”

than

summary

a

repetition

judgment

is

of
not

his
only

proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III. Analysis
Congress enacted the Natural Gas Act to impose federal
regulation upon the interstate transportation and sale of

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natural gas for resale to the public for domestic, commercial,
industrial, or any other use. 15 U.S.C. § 717(a). The Natural
Gas Act applies to FSC’s Project, which will be an interstate
natural gas pipeline. Id. at § 717(b).
The pertinent section of the Natural Gas Act regarding
use of the federal power of eminent domain to construct such
a project 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-ofway, 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. at § 717f(h).
Courts have held, and this Court agrees, that the Natural
Gas Act authorizes a party to exercise the federal power of
eminent

domain

interstate

to

natural

acquire
gas

property

pipeline

necessary

project

when:

for
(1)

an
the

plaintiff is the holder of a FERC Certificate authorizing a
project,

(2)

FERC

has

determined

5

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.”); 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); Transcontinental 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).
FSC meets each condition precedent to the substantive
right to condemn the Easements under the Natural Gas Act.
FSC holds a FERC Certificate authorizing the Project. (Doc.
# 1-4). FERC has determined that the Easements are necessary

6

for the Project. (Id.). And, FSC has been unable to acquire
the Easements by contract. (Doc. # 6-1 at ¶ 19).
District courts have limited jurisdiction in Natural Gas
Act condemnation cases. 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). That jurisdiction is to
enforce the condemnation authorized by the issuance of a FERC
certificate. Id. The condemnation case “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). Furthermore,
even if defendants were to proffer sufficient
detail to raise questions about the advisability or
fairness of FERC’s actions related to safety and
the potential impairment of others’ property
rights, this Court would have no authority to amend
or qualify the Commission’s order . . . . 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.
Bedford Cty., Pa., No. 08-168, et al., 2008 WL 4346405, at *3

7

(W.D. Pa. Sept. 19, 2008) (citations omitted). As several
courts have found, “the role of the district court in [Natural
Gas Act] eminent domain cases extends solely to examining the
scope of the certificate and ordering the condemnation of
property as authorized in that certificate.” Columbia Gas
Trans. Corp. v. An Easement to Construct, Operate & Maintain
a 24-Inch Pipeline, No. 5:07CV04009, 2008 WL 2439889, at *2
(W.D. Va. June 9, 2008).
Upon due consideration, the Court finds that FSC has the
substantive

right

to

condemn

the

Easements

through

the

federal power of eminent domain granted to it pursuant to the
Natural Gas Act, consistent with all applicable provisions of
its FERC Certificate and the related Final Environmental
Impact Statement.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Florida Southeast Connection, LLC’s Motion for
Partial Summary Judgment (Doc. # 6) is GRANTED.
DONE and ORDERED in Chambers in Tampa, Florida, this 11th
day of May, 2016.

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