WBI Energy Transmission, Inc. v. Easement and Right-of-Way Across: et al
Filing
62
ORDER GRANTING SUMMARY JUDGMENT ON RIGHT TO TAKE AND FOR IMMEDIATE POSSESSION. Order Granting 40 Motion for Summary Judgment. READ ORDER FOR DETAILS. Signed by Judge Susan P. Watters on 2/8/2017. (Copy Order to MTD_Finance) (EMH)
FILED
FEB - 8 Z017
Cler!<, U S District Court
District Of Montana
Billings
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
WBI ENERGY TRANSMISSION, INC.,
Cause No. CV 14-130-BLG-SPW
Plaintiff,
vs.
Easement and Right-of-Way Across:
Township 2 South, Range 29 East
Section 34: El/2SE14, El/2Wl/2SE1/4
Section 35: Nl/2SW1/4, NWI/4
Township 5 South, Range 26 East
Section 10: SW1/4SW1/4
Section 15: Wl/2NW1/4
Section 21: Nl/2SEI/4, SE1/4SEI/4
Township 7 South, Range 25 East
Section 9: NW1/4SE1/4
Township 6 South, Range 26 East
Section 6: Sl/2SE1/4
Section 7: All
Section 8: Wl/2Wl/2NW1/4
in Big Hom and Yellowstone County, Montana,
Consisting of Approximately 12.55 Acres,
ARVILLA PLAINBULL aka ARVILLA TOWNSEND,
UNITED STATES OF AMERICA, and UNKNOWN
OWNERS,
Defendants.
ORDER GRANTING SUMMARY
JUDGMENT ON RIGHT TO
TAKE AND FOR IMMEDIATE
POSSESSION
Upon consideration by the Court of the following:
1. Condemnation Complaint (Doc. #3 ), as amended by the First Amended
Complaint (Doc. #2);
2. Statement of Stipulated Facts (Doc. #21);
3. WBI Energy's Summary Judgment Motion for Order of Taking and
Immediate Possession (Doc. #40);
4. Statement of Undisputed Facts in Support of Motion for Summary
Judgment Order of Taking and Immediate Possession (Doc. #41);
5. Affidavit of Tom Stortz (Doc. #43);
6. Affidavit of Jeff Rust (Doc. #44);
7. WBI Energy's Brief in Support of Motion for Summary Judgment Order
of Taking and Immediate Possession (Doc. #45);
8. Order of June 21, 2016 (Doc. #47);
9. Order of December 8, 2016 (Doc. #60); and
10. The record in this matter,
THE COURT HEREBY ORDERS AS FOLLOWS:
STATEMENT OF FACTS
1.
WBI is a natural gas company within the meaning of the Natural Gas
Act, 15 U.S.C. § 717a(6), and is engaged in gathering, storing, and transporting
natural gas in interstate commerce. Statement of Stipulated Facts, if 1 (Doc. #21).
WBI operates under the jurisdiction of the Federal Energy Regulatory Commission
("FERC"). Affidavit ofJeff Rust at if 2 (Doc. #44).
2
2.
WBI, or its predecessor, Montana-Dakota Utilities Company, has
been in the pipeline business in the states of Montana, North Dakota, South
Dakota, and Wyoming for more than seventy-five years. Currently, WBI Energy
operates approximately 3,800 miles of transmission and gathering pipelines.
Affidavit ofJeff Rust at if 3 (Doc. #44 ).
3.
On February 13, 1985, FERC issued to Williston Basin Interstate
Pipeline Company (n/k/a WBI Energy Transmission, Inc.) a Certificate of Public
Convenience and Necessity (the "Certificate") authorizing it to acquire and
operate the interstate pipeline facilities previously owned and operated by
Montana-Dakota Utilities Co. ("MDU"), as well as to provide the certificated
This included a Certificate of Public
service previously provided by MDU.
Convenience and Necessity authorizing routine activities (a "blanket certificate")
issued November 24, 1982. The blanket certificate authorized MDU to perform
the activities specified in Subpart F of Part 157 of the Commission's Regulations,
as amended from time to time, including the construction, acquisition, and
operation of facilities for the transportation and storage of natural gas. Affidavit of
Jeff Rust at if 4 (Doc. #44).
4.
On July 1, 2012, Williston Basin Interstate Pipeline Company
amended its Articles of Incorporation to change its name to WBI Energy
Transmission, Inc. Affidavit ofJeff Rust at if 5 (Doc. #44).
3
5.
WBI is the owner and operator of a 12-inch diameter interstate
natural gas pipeline (the "Pipeline"), a portion of which crosses the Crow Indian
Reservation. Statement of Stipulated Facts,
~
2 (Doc. #21). Construction of the
Pipeline was completed in 1950. The Pipeline has been in its present location and
continuously operating since its construction. Affidavit of Tom Stortz at
~
2 (Doc.
#43). The Certificate issued by FERC covers the Pipeline. Affidavit ofJeff Rust at
~
6 (Doc. #44).
6.
That portion of the Pipeline crossing the Crow Indian Reservation
was subject to a right-of-way grant issued by the Bureau of Indian Affairs (the
"Right-of-Way"). Affidavit of Tom Stortz at
~
3 (Doc. #43). On April 6, 2009,
WBI filed an application for renewal of the Right-of-Way with the Bureau of
Indian Affairs. Affidavit of Tom Stortz at~ 3 (Doc. #43).
7.
Arvilla Plainbull ("Mrs. Plainbull") is a beneficial Indian owner of an
undivided portion of allotments 1901 and 2009, and all of allotments 2037-A,
2036-A, and 1085-B (the "Subject Property").
Mrs. Plainbull's ownership
interest, whether in whole or in part, was obtained as an heir, devisee and
successor to the original allottees under the General Allotment Act of 1887. The
United States holds Mrs. Plainbull's interest in trust as an individual Indian
allottee. Statement ofStipulated Facts,
~
3 (Doc. #21).
4
8.
The Crow Tribe of Indians is the beneficial owner of an undivided
portion of allotments 1901 and 2009. The United States holds the Crow Tribe's
interest in trust for the benefit of the Crow Tribe. Statement of Stipulated Facts,
~
3 (Doc. #21).
9.
WBI attempted to reach an agreement with Mrs. Plainbull for the
renewal of the Right-of-Way. Statement of Stipulated Facts,~ 5 (Doc. #21). WBI
and Mrs. Plainbull were unable to reach a consensual agreement as to the renewal
of the right-of-way for the Pipeline and the compensation to be paid for the same.
Statement of Stipulated Facts,
~
5 (Doc. #21). WBI negotiated in good faith with
Mrs. Plainbull.
10.
The Subject Property is necessary for the operation and maintenance
of the Pipeline for the transportation of natural gas and for associated facilities
necessary for the proper operation of the Pipeline. Affidavit of Jeff Rust at
~
10
(Doc. #44).
11.
Mrs. Plainbull, through counsel, put WBI on notice that she will not
allow it access to the Subject Property for any reason. Statement of Undisputed
Facts in Support of Motion for Summary Judgment Order of Taking and
Immediate Possession~ 17 (Doc. #41).
12.
WBI must be able to access the Pipeline through the Subject Property
5
for all regularly scheduled inspections, maintenance and repairs, and all
emergency situations.
For example, the United States Department of
Transportation imposes certain regulatory requirements on WBI in connection
with the Pipeline, including pipeline patrolling, leakage surveys, line marker
maintenance, valve maintenance, external and atmospheric corrosion control
review and maintenance, and pipeline integrity management. See, 49 C.F .R. § 192
et. seq.; Affidavit ofJeff Rust at~ 11 (Doc. #44). WBI will suffer irreparable harm
if it cannot access the Subject Property for such matters.
CONCLUSIONS OF LAW
Summary judgment is appropriate when no genuine issues of material fact
exist and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); see also Wellington v. Lyon County Sch. Dist., 187 F.3d 1150, 1154 (9th
Cir. 1999). The party moving for summary judgment bears the initial burden of
proof to identify the absence of a genuine issue of material fact. Once the moving
party has satisfied this burden, the opposing party must set forth specific facts
showing that there remains a genuine issue for trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The opposing party "must do more than simply show
that there is some metaphysical doubt as to the material facts." Matsushita Elec.
Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
6
Right to Take the Subject Property
1.
WBI seeks to condemn the Subject Property pursuant to the Natural
Gas Act ("NGA"), 15 U.S.C. § 717f(h), which reads in part:
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-ofway to construct, operate, and maintain a pipe line... for the
transportation of natural gas, and the necessary land... for the
location of compressor stations, pressure apparatus, or other stations
or equipment necessary to the proper operation of such pipe line ... it
may acquire the same by the exercise of the right of eminent
domain ....
2.
This Court has previously affirmed the elements necessary to
condemn property under the NGA:
In order to establish its right to condemn Defendants' property,
Williston Basin must establish three elements: (1) that it holds a
FERC certificate authorizing the relevant project, (2) that the land to
be taken is necessary to the project; and (3) that the company and the
landowners have failed to agree on a price for the taking following
good faith negotiations. Transwestern Pipeline Co., LLC v. 17.19
Acres, 550 F.3d 770, 776 (9th Cir. 2008).
Williston Basin Interstate Pipeline Company v. Property Interests Located in
Carbon County, Montana, 2010 WL 5104991 (D. Mont. 2010).
3.
WBI is a natural gas company within the meaning of the Natural Gas
Act, 15 U.S.C. § 717a(6); it is engaged in gathering, storing, and transporting
natural gas in interstate commerce; and it holds a FERC Certificate of Public
7
Convenience and Necessity (the "Certificate") authorizing the construction,
operation, and maintenance of the Pipeline. The first statutory element of WBI's
right to condemn the Subject Property is met. Williston Basin Interstate Pipeline
Company v. Property Interests Located in Carbon County, Montana, 2010 WL
5104991 (D. Mont. 2010). Transwestern Pipeline Co., LLC v. 17.19 Acres, 550
F.3d 770, 776 (9th Cir. 2008).
4.
By issuing the Certificate to WBI, FERC has determined that the
Subject Property is necessary to the operation of the Pipeline. This determination
cannot be challenged by Defendants. Williston Basin Interstate Pipeline Company
v. Property Interests Located in Carbon County, Montana, 2010 WL 5104991 (D.
Mont. 2010) ("By issuing the Certificate of Public Convenience and Necessity
under the Natural Gas Act, FERC has already determined that Defendants'
property interests are necessary. Defendants have not offered any arguments to
the contrary, and even if they did, such arguments would be an improper collateral
attack on the FERC certificate."); Williams Natural Gas Co. v. City of Oklahoma
City, 890 F.2d 255, 262 (10th Cir.1989); Kansas Pipeline Co. v. 200 Foot by 250
Foot Piece of Land, 210 F.Supp.2d 1253, 1256 (D. Kan. 2002) ("Once the holder
of a FERC certificate of public convenience and necessity asks a district court to
enforce its right to condemn, the findings of the FERC certificate are treated as
8
conclusive.").
The second statutory element of WBI's right to condemn the
Subject Property is met.
5.
WBI negotiated in good faith with Mrs. Plainbull but was unable to
reach an agreement. The final statutory element of WBI' s right to condemn the
Subject Property is met. Transwestern Pipeline Co., LLC v. 17.19 Acres, 550 F.3d
770, 776 (9th Cir. 2008).
6.
WBI has met the requirements for condemning the Subject Property
as requested in its First Amended Complaint. Transwestern Pipeline Co., LLC v.
17.19 Acres, 550 F.3d 770, 776 (9th Cir. 2008). Accordingly, WBI is entitled to
the entry of an order granting it the right to condemn the Subject Property.
7.
Condemnation of lands owned by Indians is allowed under 25 U.S.C.
§ 357. This section states as follows:
Lands allotted in severalty to Indians may be condemned for any
public purpose under the laws of the State or Territory where located
in the same manner as land owned in fee may be condemned, and the
money awarded as damages shall be paid to the allottee.
In enacting 25 U.S.C. § 357, Congress placed Indian allottees in the same position
as any private landowner. S. Cal. Edison Co. v. Rice, 685 F.2d 354, 356 (9th Cir.
1982). However, 25 U.S.C. § 357 authorizes condemnation only of "lands allotted
in severalty to Indians .... " This section may not be employed to condemn an
interest in allotted lands which is beneficially owned by an Indian tribe. Neb. Pub.
9
Power Dist. v. 100.95 Acres of Land, 719 F.2d 956, 961 (8th Cir. 1983). Instead,
consent of the Secretary and the proper tribal officials must be obtained pursuant
to 25 U.S.C. § 324. The Crow Tribe owns undivided interests in allotments 1901
and 2009, and no law permits condemnation of tribal trust lands. See United
States v. Pend Oreille Pub. Util. Dist. No. 1, 28 F.3d 1544, 1548 (9th Cir. 1994).
Therefore, any condemnation or preliminary injunction order entered in this action
is applicable only to the extent of Mrs. Plainbull's interest in the allotments and
has no force with respect to the Crow Tribe's interest in allotments 1901 and 2009.
Immediate Possession of Subject Property
(Injunctive RelieO
1.
Although the NGA does not expressly allow the condemnor to take
possess10n of the Subject Property before determining compensation for the
taking, federal district courts can and do grant immediate possession in
condemnation actions under the NGA through the preliminary injunction
procedure set forth in Rule 65 Fed. R. Civ. P. Transwestern Pipeline v. 17.19
Acres ofProperty, 550 F.3d 770, 777-778 (9th Cir. 2008); East Tennessee Natural
Gas Co. v. Sage, 361F.3d808, 831 (4th Cir. 2004).
2.
In the Ninth Circuit, a district court must first determine that a gas
company has the substantive right to condemn property before exercising its
10
equitable power to grant the remedy of immediate possession though a preliminary
injunction. Transwestern Pipeline v. 17.19 Acres of Property, 550 F.3d 770, 777778 (9th Cir. 2008); Northwest Pipeline Corp. v. The 20' x 1,430' Pipeline Right
of Way, 197 F.Supp.2d 1241, 1246 (E.D.Wash. 2002).
3.
The traditional Ninth Circuit test for a preliminary injunction requires
WBI to show:
a.
A strong likelihood of success on the merits,
b.
The possibility of irreparable injury if the preliminary
injunction is not granted,
c.
The balance of hardships favors WBI, and
d.
The preliminary injunction advances the public interest.
See e.g. Ranchers Cattlemen Action Legal Fund United Stockgrowers of America
v. United States Dept. of Agriculture, 415 F.3d 1078, 1092 (9th Cir. 2005);
Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir. 2001) (quoting Textile
Unltd., Inc. v. BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001)).
4.
The alternative test requires WBI to show either:
a.
A combination of probable success on the merits and the
possibility of irreparable injury, or
b.
That serious questions are raised and the balance of hardships
tips sharply in the plaintiffs favor.
Ranchers Cattlemen, 415 F.3d at 1092-93; Textile Unltd., 240 F.3d at 786. These
11
are not separate tests, but two points on a sliding scale where the required degree
of irreparable harm decreases as the probability of success increases. Id. at 1093.
5.
WBI has established its right to condemn the Subject Property,
thereby succeeding on the merits; therefore, the degree of irreparable harm
necessary for the relief requested herein becomes "minimal". Kootenai Tribe of
Idaho v. Veneman, 313 F.3d 1094, 1124 (9th Cir. 2002) ("If plaintiffs had
demonstrated a strong likelihood of success on the merits, then plaintiffs would
have needed only to make a minimal showing of harm to justify the preliminary
injunction."); Earth Island Institute v. U.S. Forest Service, 351 F.3d 1291, 1300
(9th Cir. 2003) ("[T]he degree of irreparable harm required for a preliminary
injunction increases as the probability of success on the merits decreases, and vice
versa.").
6.
Mrs. Plainbull, through counsel, put WBI on notice that she will not
allow it access to the Subject Property for any reason. WBI has shown that it must
be able to access the Pipeline through the Subject Property for all regularly
scheduled inspections, maintenance and repairs, and all emergency situations. The
inability to access the Pipeline through the Subject Property is sufficient
irreparable harm to support the granting of an injunction putting WBI in
immediate possession of the Subject Property.
12
7.
The potential harm to Mrs. Plainbull is slight, if any. The Pipeline is
in place. The Court has awarded WBI possession of the Subject Property for
purposes of the Right-of-Way. The timing of the taking does not increase the harm
to Mrs. Plainbull. East Tennessee Natural Gas Co. v. Sage, 361 F.3d 808, 829 (4th
Cir. 2004). Considering that Mrs. Plainbull's use of the Subject Property will not
change after WBI is put possession, Mrs. Plainbull will suffer no hardship.
8.
The public interest supports granting WBI immediate use and
possession of the Subject Property. In enacting the NGA, Congress specifically
determined that "[t]he business of transporting and selling natural gas for ultimate
distribution to the public is affected with a public interest .... " 25 U.S.C. §717(a).
The purpose of the NGA is "[t]o ensure that consumers ... have access to an
adequate supply of natural gas at reasonable prices." Sage, 361 F.3d at 830.
When FERC issued the Certificate to WBI in connection with the Pipeline, it
determined that the Pipeline was in the public interest. Maritimes & Northeast
Pipeline, LLC, v. 6.85 Acres of Land in Hancock and Penobscot Counties, Maine,
et al., 537 F.Supp.2d 223, 227 (D. Maine 2008); Kentucky Natural Gas
Corporation v. Federal Power Commission et al., 159 F.2d 215, 218 (6th Cir.
1947) ("The basic purpose of the Natural Gas Act is protection of the public
interest.").
13
9.
Final determination of just compensation to be paid for the taking of
title to the Subject Property will occur following a trial on the merits. WBI is
seeking only possession of the Subject Property.
Mrs. Plainbull's rights are
adequately protected by substantive and procedural safeguards during the
pendency of this action.
10.
First, title to the Subject Property "[i]n an NGA [condemnation] case
does not pass until compensation is determined and paid .... " East Tennessee
Natural Gas Co. v. Sage, 361 F.3d 808, 825 (4th Cir. 2004), citing Danforth v.
United States, 308 U.S. 271, 284-85, 60 S.Ct. 231, 84 L.Ed. 240 (1939). If WBI
fails to pay the just compensation awarded to Mrs. Plainbull following a trial on
the merits, WBI will become a trespasser. Id. at 825-826, citing Cherokee Nation
v. S. Kan. Ry. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 34 L.Ed. 295 (1890).
Granting WBI possession of the Subject Property at this stage of the case does not
change WBI' s obligation to pay Mrs. Plainbull just compensation prior to taking
title to the Subject Property, thereby protecting Mrs. Plainbull's rights. Id.
11.
Second, if WBI is awarded possession of the Subject Property, this
action may not be dismissed without the Court awarding compensation to Mrs.
Plainbull for the possession taken. F.R.Civ.P. Rule 71.l(i)(l)(C). Mrs. Plainbull
is assured compensation for the grant of possession to WBI in the Subject
Property.
14
NOW THEREFORE, in accordance with the foregoing,
IT IS HEREBY ORDERED AS FOLLOWS:
A.
That WBI Energy Transmission, Inc., its successors and assigns, are
hereby granted easements and rights-of-way to survey, lay, construct, operate,
maintain, inspect, patrol, test, protect, increase or decrease the capacity of,
changing the characteristics and capabilities of, repair, rebuild, replace, relocate,
abandon in place, remove and remediate the Pipeline as it currently exists or may
hereafter be located and for such other uses and purposes as the law may require of
an owner and operator of a natural gas pipeline; together with the right to
construct, operate, maintain, install, replace, renew, convert and relocate on,
across, or over the easement and right-of-way certain stations, structures, and
equipment for transportation, storage, gathering, compressing, pressurizing and
pumping, along with such other stations, structures and equipment necessary to the
proper operation of the Pipeline; together with roads, trails, tracks, paths,
adjoining property, airspace, and other routes and means needed to access the
Pipeline by ground or aeronautically for each and every one of the foregoing
purposes, reasons and uses (each of the foregoing purposes, reasons and uses
relating to the Pipeline easement and right-of-way and the associated access
15
easement and right-of-way are hereinafter referred to collectively as the
"Easement").
B.
That the Scope of the Easement is 50 feet wide, 25 feet on either side
of the centerline of the Pipeline as it currently exists or may hereafter be located;
together with such temporary staging, workspace, and area as is reasonably
necessary for the purposes of the Easement; together with secondary access
easements 20 feet wide across roads, trails, tracks, paths, and such portions of the
Subject Property as may be necessary for the use of the Easement, along with the
airspace above the Pipeline, all of which are needed to operate and access the
Pipeline for the reasons, uses, and purposes stated hereinabove.
C.
That the term of the Easement shall be for so long as WBI Energy
Transmission, Inc., its successors and assigns, use or maintain the Pipeline or any
portion thereof.
D.
That the Pipeline and access routes under the Easement be initially
located as follows:
Defendant
Arvilla Plainbull
and
United States
Map
Allotment No. and Description of Property
Exhibit A #2009
hereto
TOWNSHIP 2 SOUTH RANGE 29 EAST
Section 34: El/2SE14, El/2Wl/2SE1/4
2
16
Section 35: Nl/2SW1/4, NWl/4
TOWNSHIP 5 SOUTH 2 RANGE 26 EAST
Section 21: Nl/2SE1/4, SE1/4SE1/4
Arvilla Plainbull
and
United States
Exhibit B # 1901
hereto
TOWNSHIP 5 SOUTH 2 RANGE 25 EAST
Section 10: SW1/4SW1/4
Section 15: Wl/2NW1/4
TOWNSHIP 7 SOUTH, RANGE 25 EAST
Section 9: NW1/4SE1/4
Arvilla Plainbull
and
United States
Exhibit C #2037-A
hereto
TOWNSHIP 6 SOUTH 2 RANGE 26 EAST
Section 6: S 1/2SE1/4
Section 8: Wl/2Wl/2NW1/4
Arvilla Plainbull
and
United States
Exhibit D #2036-A
hereto
TOWNSHIP 6 SOUTH 2 RANGE 26 EAST
Section 7: El/2
Arvilla Plainbull
and
United States
Exhibit E
hereto
E.
#1085-B
TOWNSHIP 6 SOUTH 2 RANGE 26EAST
Section 7: All
That immediately upon deposit with the Court by WBI Energy
Transmission, Inc., of $5,056.94, it shall have possession of the Subject Property
for all purposes stated herein.
17
F.
That the foregoing deposit shall be held for final distribution to
Mrs. Plainbull following a determination of just compensation to be awarded
herein.
IT IS SO ORDERED,
Dated this
/~of February, 2017.
Hon. Susan P. Waters,
United States District Court
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?