NEXUS Gas Transmission, LLC v. 0.4 Acres +/- Permanent Easement and 0.8 Acres +/- Temporary Easement of Land in Augusta Township, Washtenaw County, Michigan et al

Filing 16

ORDER Granting Plaintiff's 5 MOTION for Partial Summary Judgment and for Preliminary Injunction as to Defendants Glenn and Carol Ladenberger Only. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
NEXUS GAS TRANSMISSION, LLC,
Plaintiff,

Case No. 17-cv-13220
Hon. Matthew F. Leitman

v.
0.4 ACRES +/- PERMANENT EASEMENT
AND 0.8 +/- TEMPORARY EASEMENT
OF LAND IN AUGUSTA TOWNSHIP,
WASHTENAW COUNTY, MICHIGAN, et al.,
Defendants.
__________________________________________________________________/
ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT AND FOR PRELIMINARY INJUNCTION AS TO
DEFENDANTS GLENN AND CAROL LADENBERGER ONLY (ECF #5)
In this condemnation action brought under the Natural Gas Act, 15 U.S.C.
§ 717f(h), Plaintiff NEXUS Gas Transmission, LLC seeks to acquire by
condemnation an easement over property owned by Defendants Glenn and Carol
Ladenberger. (See ECF #1.) NEXUS has now moved for partial summary judgment
and for a preliminary injunction that grants it immediate access to and use of the
easement. (See ECF #5.)

For the reasons that follow, NEXUS’ motion is

GRANTED.

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I
NEXUS is a natural gas company that plans to construct, operate, and
maintain an interstate natural gas pipeline system over 257.5 miles of Ohio and
Michigan. In order to construct the pipeline, NEXUS requires easements over many
different tracts of property. NEXUS has acquired voluntary easements over nearly
all of the necessary property, but it was unable to acquire an easement over property
owned by the Ladenbergers (the “Easement”).1 The description of the Easement is
attached to this Order as Exhibit A.
As a result, on October 2, 2017, NEXUS filed a Complaint for Condemnation
in this Court pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h). (See Compl.,
ECF #1.) In the Complaint, NEXUS asks the Court for:
(1) an order establishing that NEXUS has the authority
to condemn the [Easement]; (2) an order granting
NEXUS immediate access to and use of the
Easement[]…; and (3) [a] determination and award of
just compensation attributable to NEXUS’ acquisition
of the Easement[].
(Compl., ECF #1 at Pg. ID 2.)
NEXUS also filed a motion for partial summary judgment and preliminary
injunction. (See ECF #5.) In that motion, NEXUS sought “an order (1) confirming

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NEXUS was also unable to obtain an easement over land owned by Defendant M
& BK, LLC. Since the filing of this action, NEXUS and M & BK have resolved
their dispute.
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NEXUS’ condemnation authority under the Natural Gas Act, 15 U.S.C. § 717f(h);
and (2) granting NEXUS immediate access to and possession of the [E]asement[] …
and also enjoins Defendants from interfering with NEXUS’ right of access.” (ECF
#5 at Pg. ID 130.) NEXUS also requested that the Court set an expedited schedule
for its motion so that it did not have to delay construction of the pipeline. (See id. at
Pg. ID 132.)
The Court issued an order on October 11, 2017, in which it (1) required the
Ladenbergers to respond to NEXUS’ motion by no later than October 16, 2017, and
(2) set a hearing on the motion for October 18, 2017. (See ECF #11.)

The

Ladenbergers did not file any opposition to the motion, but they did appear at the
scheduled hearing on October 18.
II
The Court begins with NEXUS’ request for partial summary judgment. In
order to establish the right to condemn the Easement, NEXUS must establish that:
(1) the Federal Energy Regulatory Commission (“FERC”) has issued a certificate of
public convenience and necessity to NEXUS authorizing the pipeline project; (2) the
use of Easement is necessary for construction and operation of the pipeline project;
and (3) NEXUS cannot acquire the Easement by contract and has been unable to
agree with the Ladenbergers on compensation for the Easement. See 15 U.S.C. §
717f(h). See also Rover Pipeline v. 1.23 Acres of Land, Case No. 17-cv-10365 (E.D.
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Mich. Mar. 10, 2017), Dkt. #640 at Pg. ID 7965-66 (stating requirements under the
Natural Gas Act).
NEXUS has presented evidence that it has satisfied all three of these
conditions, including that FERC has provided it a certificate of public convenience
and necessity authorizing the pipeline project. (See ECF #5-2.) The Ladenbergers
have not presented any counter-evidence or otherwise disputed the evidence NEXUS
has submitted. Accordingly, there is no factual dispute that NEXUS has satisfied all
three requirements under the Natural Gas Act.
At the hearing on NEXUS’ motion, the Ladenbergers argued that the
condemnation of the Easement would violate the Fifth Amendment’s Takings
Clause. However, the Ladenbergers were unable to cite any authority for that
proposition, and at least one federal district court has rejected that argument when
raised by a party objecting to a condemnation of property under the Natural Gas Act.
See Equitrans, L.P. v. 0.56 Acres, 145 F.Supp.3d 622, 639-31 (N.D. W.Va. 2015)
(“[B]ecause Equitrans’ complaint is sufficient to state a condemnation claim under
§ 717f(h) and that section satisfies the Fifth Amendment, Equitrans’ claim does not
facially violate the Fifth Amendment”). On this record, and in the absence of any
authority presented by the Ladenbergers, the Court is not prepared to hold that
condemnation of the Easement violates the Takings Clause.

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Accordingly, based on the record and arguments presented, the Court
GRANTS NEXUS partial summary judgment. Pursuant to the Natural Gas Act, as
the holder of a valid certificate of public convenience and necessity issued by FERC,
NEXUS has the substantive right to condemn the Easement for the pipeline project.
III
The Court now turns to NEXUS’ request for a preliminary injunction.
NEXUS asks the Court to “grant [it] immediate access to and possession of the”
Easement. (ECF #5 at Pg. ID 131-32.)

When a court considers a motion for a

preliminary injunction, it must weigh four factors:
(1) whether the movant has a strong likelihood of success
on the merits; (2) whether the movant would suffer
irreparable injury without the injunction; (3) whether the
issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served
by the issuance of the injunction.
Certified Restoration v. Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535,
542 (6th Cir. 2007). Here, based on the record before the Court, and in the absence
of any counterarguments or counter-authority from the Ladenbergers on the
injunction factors, these factors weigh in favor of granting NEXUS its requested
preliminary injunction.
First, NEXUS does not just have a “strong likelihood of success on the
merits,” as determined above, it has already succeeded on the merits of its
condemnation claim. This factor therefore weighs heavily in favor of the injunction.
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See Columbia Gas Transmission, LLC v. 1.01 Acres, 768 F.3d 300, 314-15 (3d Cir.
2014) (concluding first factor of test for preliminary injunction was satisfied where
gas company had right to easement under Natural Gas Act).
Second, courts have repeatedly found irreparable harm where, as here, a gas
company needs to proceed with construction of a pipeline in a certain order and
where construction delays or proceeding out of sequence could add substantial costs
to the project. See id. at 315-16; Guardian Pipeline, LLC v. 2295.49 Acres of Land,
2008 WL 1751358, at *22 (E.D. Wis. Apr. 11, 2008); Rover Pipeline, Dkt. #640 at
Pg. ID 7970-73 (concluding that pipeline company would “likely suffer irreparable
harm if it [was] not granted immediate access” to the requested easements). And the
Ladenbergers have not presented any arguments, evidence, or authority that
NEXUS’ alleged harm is not irreparable.
Third, the injunction is not likely to cause any substantial harm to the
Ladenbergers. Indeed, the Ladenbergers “have not stated any concrete injury other
than the loss of the easement[] over their land, which will definitely occur, whether
or not [the Court] grant[s] [NEXUS] immediate possession of the easement[].”
Columbia Gas Transmission, 768 F.3d at 316.
Finally, by granting NEXUS a certificate to begin construction as soon as the
necessary easements are acquired, FERC has concluded that construction of the
pipeline is in the public interest. On this record, the Court agrees.
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When the Court weighs these factors based upon the record and arguments
presented here, it concludes that NEXUS is entitled to preliminary injunctive relief.
NEXUS is therefore granted immediate possession of the Easement.
IV
For all of the reasons stated above, IT IS HEREBY ORDERED NEXUS’
motion for partial summary judgment and preliminary injunction is GRANTED as
follows:
1) NEXUS has a substantive right to condemn the Easement under the
Natural Gas Act, 15 U.S.C. § 717f(h);
2) NEXUS may immediately access and take possession of the Easement; and
3) The Ladenbergers are enjoined from interfering with NEXUS’ right of
access to and use of the Easement.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: October 23, 2017

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on October 23, 2017, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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