Columbia Gas Transmission, LLC. v. 370.393 Acres et al
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 10/09/2014. (ba, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
COLUMBIA GAS TRANSMISSION, LLC, *
Plaintiff,
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v.
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370.393 ACRES, MORE OR LESS IN,
BALTIMORE COUNTY, MARYLAND
LOCATED ON PARCEL
IDENTIFICATION NUMBER 20-00013434, OWNED BY STEPHEN A.
WILLIAMS AND CHRISTINE C.
WILLIAMS, et. al.,
Defendants.
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Civil Action No. 1:14-0469-RDB
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MEMORANDUM OPINION
This case is one of several1 initiated by Plaintiff Columbia Gas Transmission, LLC
(“Columbia Gas”) in this Court in order to obtain the land necessary for the construction of
a natural gas pipeline in Baltimore County, Maryland.
Pending before this Court is
Columbia Gas’ Motion for Partial Summary Judgment2 in which Columbia Gas seeks an
order confirming its right to condemn properties of the Defendants pursuant to the Natural
Gas Act, 15 U.S.C. § 717f(h). The parties’ submissions have been reviewed and a hearing
The cases include: Columbia Gas Transmission LLC v. 0.36 Acres, Civ. A. No. WDQ-15-638; Columbia Gas
Transmission LLC v. 0.85 Acres, Civ. A. No. WDQ-14-2288; Columbia Gas Transmission, LLC v. 561 Acres, Civ.
A. No. MJG-14-338; Columbia Gas Transmission, LLC v. 76 Acres, Civ. A. No. ELH-14-110; Columbia Gas
Transmission LLC v. Those Certain Parcels in Baltimore County and Harford County, Civ. A. No. JFM-14-220; and
Columbia Gas Transmission, LLC v. 6 Acres, Civ. A. No. JFM-15-2057.
1
Columbia Gas had originally filed a Motion for Immediate Possession of the Easements as well (ECF No.
50), but that motion has since been withdrawn.
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was held on August 20, 2014.
For the reasons that follow, Plaintiff Columbia Gas
Transmission, LLC’s Motion for Partial Summary Judgment (ECF No. 49) is GRANTED.
BACKGROUND
This Court reviews the facts and all reasonable inferences in the light most favorable
to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel.
Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013).
Plaintiff Columbia Gas Transmissions, LLC (“Columbia Gas”)
is a natural gas
company that has sued multiple property owners, the Defendants3, to obtain various
easements and rights-of-way on their property to build a pipeline under the Natural Gas Act,
15 U.S.C.A. § 717, et seq.4 Since the 1950s, Columbia Gas has operated a 26-inch gas
pipeline (“Line MA”) in and around Baltimore. Line MA is currently the only pipeline
providing gas to certain areas in Baltimore County. Line MA was constructed before federal
pipeline safety standards were enacted in 1970, leaving the pipeline vulnerable to corrosion
Defendants are property owners and residents of Baltimore County, Maryland. Original named Defendants
included Stephen A. Williams and Christine C. Williams (the “Williamses”); Edmund Childs and Marian
Childs (the “Childses”); Michael James Wagner and Linda Dolores Wagner (the “Wagners”); Joseph W.
Witcher and Leslie E. Erickson (“Mr. Witcher” and “Ms. Erickson”); Paul R. Toomey and Kristine D.
Toomey (the “Toomeys”); Michael D. Oliver and Donna L. Oliver (the “Olivers”); Lisa G. Moore, B. Lance
Moore, Diane Miller Williams, Mary Miller DiFerdinando, Carol Madeline Miller, John Walter Miller; Ruth L.
Moore and Bradley G. Moore (the “Moores”); Patrick George Welsh, Jr. (“Mr. Welsh”); Anthony H.
DiFerdinando and Mary DiFerdinando (the “DiFerdinandos”), William H. Brown and Cynthia Marie McNeil
Brown (the “Browns”), John T. Kerr, Jr. and Beth Lynch Kerr (the “Kerrs”), J. Erich Herwig and Ellen
Herwig (the “Herwigs”), and Lancaster LLC.
Early in this matter, Columbia Gas voluntarily dismissed this matter with respect to the following
named Defendants: John T. Kerr, Jr., Beth Lynch Kerr, Lancaster LLC, William H. Brown, Cynthia McNeil
Brown, J. Erich Herwig, Ellen Herwig. See ECF No. 48, 46, 31. Moreover, as noted below, the Moores and
the Olivers have been voluntarily dismissed as well. See ECF Nos. 70, 71.
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Columbia Gas and another gas company, BGE, already possess easements on some of the Defendants’
properties, which were previously obtained by these companies for the construction and operation of
pipelines. The Line MB project would expand these existing easements on the Defendants’ lands.
Specifically, the project proposes an expansion of the existing easements of 50 feet of permanent access and
25 to 50 feet of temporary access. Witcher Aff., ECF No. 60-3.
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and failure. On November 21, 2013, the Federal Regulatory Energy Commission (“FERC”)
granted a Certificate of Public Convenience and Necessity to begin a project involving the
construction of a redundancy pipeline (“Line MB”) to serve Baltimore County in addition to
Line MA.
Line MB will be an approximately 21.1 mile pipeline that will be partially located on
the properties in question. These properties are located in the middle of the linear 21.1 mile
strip of land that Columbia Gas plans to use to construct its pipeline. Columbia Gas seeks
to obtain certain temporary and permanent easements over the properties in order to
successfully complete the construction of this project. Specifically, Columbia Gas seeks a
combination of five types of easements: permanent easements, access road uses, temporary
construction easements, staging yard uses, and temporary construction licenses.5
The
amount of acreage requested ranges from .0084 acres to 2.9649 acres.
Columbia Gas has contacted the Defendants in an attempt to secure agreements
granting Columbia Gas the requested easements. See Affidavit of Jacob Frederick ¶ 23, ECF
No. 49-2 (“Columbia sent written offers to Landowners in December 2013, and January and
February 2014.”). Defendants contend that these interactions have mainly consisted of
simple form letters from Columbia Gas. Defendants have refused to agree to the terms
offered by Columbia Gas, expressing concerns about the nature and scope of the requested
property rights as well as the potential for damage to or decrease in value of their property.
After these attempts to negotiate, Plaintiff filed its Complaint in Condemnation on February
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The precise rights sought as to each property are listed in the Complaint. See Pl.’s Compl. ¶ 29.
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8, 2014.6 Thereafter, the Plaintiff filed the pending Motion for Partial Summary Judgment
(ECF No. 49).7
During the pendency of this matter, Columbia Gas reached settlements with several
of the Defendants, including Michael and Donna Oliver and Ruth and Bradley Moore. See
ECF No. 71, 70.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant
summary judgment 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(c). A
material fact is one that “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact
exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. In considering a motion for summary judgment, a judge’s function is
limited to determining whether sufficient evidence exists on a claimed factual dispute to
warrant submission of the matter to a jury for resolution at trial. Id. at 249.
The Natural Gas Act, 15 U.S.C. 717et seq., governs the process for siting and
constructing natural gas pipelines. Under that Act, natural gas pipeline companies that have
obtained a certificate of public convenience and necessity from the Federal Energy
Regulatory Commission have the right to condemn property for the purposes of pipeline
After the Complaint was filed, multiple Defendants filed a request for a More Definite statement, which this
Court denied. ECF No. 65.
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Additionally, the Plaintiff filed a Motion for Immediate Possession (ECF No. 50). However, the Plaintiff
subsequently moved to withdraw that motion, see ECF No. 72, and this Court granted that motion to
withdraw on August 18, 2014. See ECF No. 73.
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construction. Under Rule 71.1 of the Federal Rules of Civil Procedure, a complaint for
condemnation of property must contain the following information:
(A) the authority for the taking;
(B) the uses for which the property is to be taken;
(C) a description sufficient to identify the property;
(D) the interests to be acquired; and
(E) for each piece of property, a designation of each defendant
who has been joined as an owner or owner of an interest in it.
FED. R. CIV. P. 71.1(c)(2) (emphasis added). In such condemnation proceedings, the role of
the district courts is limited:
The district court’s role is simply to evaluate the scope of the
certificate and to order condemnation of property as authorized
in the certificate. Disputes over the reasons and procedures for
issuing certificates of public convenience and necessity must be
brought to the FERC. Thus, when a landowner contends that
the certificate holder is not in compliance with the certificate,
that challenge must be made to FERC, not the district court.
Columbia Gas Transmission, LLC v. 76 Acres More or Less, Civ. A. No. ELH-14-0110, 2014 WL
2960836 (D. Md. June 27, 2014), reconsideration denied, Civ. A. No. ELH-14-00110, 2014 WL
4723066 (D. Md. Sept. 22, 2014) (citations and quotation marks omitted).
ANALYSIS
In its Motion for Partial Summary Judgment, Columbia Gas seeks an order
confirming its right to condemn the properties identified in the Complaint and owned by the
named Defendants in order to construct a pipeline in Baltimore County, Maryland. The
Natural Gas Act, 15 U.S.C. 717et seq., governs the process for siting and constructing natural
gas pipelines. Before constructing a pipeline, one “must first obtain a certificate of public
convenience and necessity from the Federal Energy Regulatory Commission (‘FERC’), the
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federal agency responsible for supervising and coordinating the production of energy in the
United States.” Alliance Pipeline L.P. v. 4.360 Acres of Land, More or Less, in S/2 of Section 29,
Twp. 163 N., Range 85 W., Renville Cnty., N.D., 746 F.3d 362, 364 (8th Cir. 2014). After
obtaining the FERC Certificate of public convenience and necessity, natural gas pipeline
companies are granted the authority to condemn property for the purpose of constructing
pipelines:
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, . . .
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, or in the State courts.
The practice and procedure in any action or proceeding for that
purpose in the district court of the United States shall conform
as nearly as may be with the practice and procedure in similar
action or proceeding in the courts of the State where the
property is situated: Provided, That the United States district
courts shall only have jurisdiction of cases when the amount
claimed by the owner of the property to be condemned exceeds
$3,000.
15 U.S.C. § 717f(h). Moreover, as Judge Hollander of this Court has recently pointed out,
the role of the district courts in proceedings such as this is rather limited:
A district court’s role in proceedings involving FERC
certificates is circumscribed by statute. The district court’s role
is simply to evaluate the scope of the certificate and to order
condemnation of property as authorized in the certificate.
Disputes over the reasons and procedures for issuing
certificates of public convenience and necessity must be
brought to the FERC. Thus, when a landowner contends that
the certificate holder is not in compliance with the certificate,
that challenge must be made to FERC, not the district court.
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Columbia Gas Transmission, LLC v. 76 Acres More or Less, Civ. A. No. ELH-14-0110, 2014 WL
2960836 (D. Md. June 27, 2014), reconsideration denied, Civ. A. No. ELH-14-00110, 2014 WL
4723066 (D. Md. Sept. 22, 2014) (citations and quotation marks omitted).
In this case, it is undisputed that Columbia Gas has obtained a certificate of public
convenience and necessity from FERC on November 21, 2013 for the MB Line. Moreover,
it is clear that Columbia Gas and the remaining Defendants have been unable to agree on
the compensation to be paid for the easements. See Frederick Aff. ¶¶ 23-24 (stating that
Columbia Gas sent written offers to the Defendants and that there is no agreement on a
contract).
These facts notwithstanding, the Defendants nevertheless argue that Columbia Gas is
not entitled to summary judgment with respect to their right to condemn.
One of
Defendants’ main contentions is that Columbia Gas has failed to engage in bona fide
negotiations with the Defendants. See, e.g., Oliver Opp’n Mot. Summ. J. 1, ECF No. 55.
However, the Natural Gas Act merely requires that Columbia Gas be unable to come to an
agreement. See E. Tenn. Natural gas, LLC v. 1.28 Acres, Civ. A. No. 06-22 et al., 2006 WL
1133874, at *29 (W.D. Va. Apr. 26, 2006) (“[N]othing in the [Natural Gas] Act or Federal
Rule of Civil Procedure 71A requires the condemnor to negotiate in good faith. All the Act
requires is a showing that the plaintiff has been unable to acquire the property by contract or
has been unable to agree with the owner of the property as to the compensation to be
paid.”); see also Columbia Gas Transmission, LLC v. 76 Acres More or Less, 2014 WL 2960836, at
*8 (“The statute does not prescribe the manner in which negotiations must proceed or the
form that an offer to purchase the easements must take.”). As Columbia Gas has adequately
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shown an inability to agree on compensation, it has demonstrated all the negotiation that is
required under the Natural Gas Act in order to obtain summary judgment with respect to its
right to condemn the properties.
The Defendants also argue that the descriptions of the easements are inadequate.
Columbia Gas has identified the subject properties by parcel number and liber folio number
for each property. Additionally, Columbia Gas provided two maps/drawings that identify
the affected properties and the proposed easement; these drawings, however, also contain a
disclaimer stating that the drawings are for general information or discussion purposes only.
Defendants assert that these descriptions are unreliable and inadequate because they do not
allow for a precise description of Columbia Gas’ rights.
Under Rule 71.1 of the Federal Rules of Civil Procedure, a complaint for
condemnation of property must contain the following information:
(A) the authority for the taking;
(B) the uses for which the property is to be taken;
(C) a description sufficient to identify the property;
(D) the interests to be acquired; and
(E) for each piece of property, a designation of each defendant
who has been joined as an owner or owner of an interest in it.
FED. R. CIV. P. 71.1(c)(2) (emphasis added). Thus, the rule “does not explicitly require any
particular type of map, drawing, or measurement of the interests to be acquired . . . . [n]or
does it require a survey adequate for recording in local land records.”
Columbia Gas
Transmission, LLC v. 76 Acres More or Less, 2014 WL 2960836, at *5. Under these facts—
which are essentially identical to those of Columbia Gas Transmission, LLC v. 76 Acres More or
Less—Columbia Gas has satisfied its burden of identifying the property under Rule 71.1 and,
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therefore, no additional descriptions are needed in order for Columbia Gas to obtain an
order recognizing its right to condemn the properties.8
Next, Defendants have asserted that Columbia Gas seeks rights that exceed those
granted in the FERC Certificate. See Mem. Supp. Joint Consol. Resp. Defs. Wagners,
Wichter/Erickson and Toomeys 6-8, ECF No. 60-1. However, as is clear in the Defendants’
papers, the Defendants protest the terms offered by Columbia Gas during the negotiation
process. These terms, by Columbia Gas’s own admission, were broader than those sought in
Columbia Gas’ actual Complaint. Defendants have failed to identify a single right actually
sought in Columbia Gas’ Complaint that exceeds the scope of the FERC Certificate.
Accordingly, the Defendants’ contention is of no moment, and Columbia Gas is entitled to
summary judgment with respect to its right to condemn.
Finally, Defendants suggest that Columbia Gas has failed to comply with certain
conditions precedent listed in the FERC Certificate. See Mem. Supp. Joint Consol. Resp.
Defs. Wagners, Wichter/Erickson and Toomeys 8, ECF No. 60-1. However, “[a] district
court’s role in proceedings involving FERC certificates is circumscribed by statute, and 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.” Millennium Pipeline Co. v. Certain Permanent
& Temp. Easements, 777 F. Supp. 2d 475, 481 (W.D.N.Y. 2011) aff’d sub nom. Millennium
Pipeline Co. v. Certain Permanent & Temp. Easements in (No No.) Thayer Rd., S.B.L. No. 63.00-1Defendants have also contended that partial summary judgment is inappropriate because there has not yet
been a chance for discovery concerning the nature and scope of the easements. However, this Court has
already ruled that the descriptions are adequate at this stage of the proceeding, and the Defendants have not
identified any information necessary for their defense at this stage. Of course, discovery will be permitted
before this Court makes any rulings on the issue of compensation to be paid to the landowners.
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24.1, Town of Erin, Cnty. of Chemung, New York, 552 F. App’x 37 (2d Cir. 2014) (internal
quotation marks omitted). Defendants’ attempt to distinguish Millennium Pipeline on the basis
of the construction status of the pipeline is unpersuasive; FERC is charged with enforcing its
certificates whereas the role of the federal district courts is to ensure that the scope of the
certificate is not exceeded. See Portland Natural Gas Transmission Sys. v. 4.83 Acres of Land, 26
F. Supp. 2d 332, 336 (D.N.H. 1998) (“Compliance with FERC conditions cannot be used as
a defense to the right of eminent domain and cannot be cited to divest the court of the
authority to grant immediate entry and possession to the holder of a FERC certificate.”);
Columbia Gas Transmission, LLC v. 76 Acres More or Less, Civ. A. No. ELH-14-0110, 2014 WL
2960836 (D. Md. June 27, 2014) (“[W]hen a landowner contends that the certificate holder is
not in compliance with the certificate, that challenge must be made to FERC, not the district
court.”). This Court has already determined that Columbia Gas’ Complaint complies with
the scope of the FERC Certificate; therefore, this Court’s inquiry is at an end.
CONCLUSION
For the reasons stated above, Plaintiff Columbia Gas Transmission, LLC’s Motion
for Partial Summary Judgment (ECF No. 49) is GRANTED.
A separate Order follows.
Dated:
October 9, 2014
_____/s/___________________
Richard D. Bennett
United States District Judge
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