Rockies Express Pipeline, LLC v. 4.895 Acres of Land, More of Less, In Butler County, Ohio et al.

Filing 1070

ORDER adopting 1060 Report and Recommendations.. Signed by Judge Gregory L Frost on 12/19/11. (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROCKIES EXPRESS PIPELINE, LLC,
Plaintiff,

Case No. 2:08-cv-554
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.

4.895 ACRES OF LAND, MORE OR LESS,
IN BUTLER COUNTY, OHIO
(PIPELINE RIGHT-OF-WAY SERVITUDE), et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court for de novo consideration of the Report and
Recommendation of the Commission regarding the Murray property. (ECF No. 1060.) Also
before this Court are objections (ECF No. 1062) filed by Defendants Murray Energy
Corporation, American Energy Corporation, and Consolidated Land Company (“Murray”), and a
memorandum in opposition (ECF No. 1069) filed by Plaintiff, Rockies Express Pipeline, LLC
(“REX”).1 For the reasons that follow, this Court finds the objections not well taken, overrules
the objections, and adopts the Report and Recommendation of the Commission.
In the November 22, 2011 Report and Recommendation, the Commission recommended
that the Court find no damages due to Murray from REX in regard to the 6 West Longwall Panel.
This recommendation was the result of a unanimous decision reached by Commission

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All pinpoint references to documents filed on the electronic docket shall be to the
original page numbers of the documents involved, not to the page numbers assigned by the
electronic filing system.
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Chairperson Gregory M. Travalio, Commissioner James Trifelos, and Commissioner G. Franklin
Hinkle, II. (ECF No. 1060, at 2.) Murray subsequently objected to the Commission decision
(ECF No. 1060) and to the underlying Orders of this Court (ECF Nos. 1035, 1056) upon which
the Commission relied.
Murray incorporates by reference the prior arguments the companies raised in continuing
to argue that Murray mined the 6 West panel by necessity and is thus entitled to compensation
from REX. Given that Murray presents nothing new in the objections, the objections are
essentially a necessary step toward exhausting the Commission process and obtaining an
appealable judgment.
In opposing the objections, REX is correct that this Court has already considered and
rejected Murray’s overarching premise that because its business decision to mine when it did
was necessary, its actions fall within the scope of these proceedings. The Court has also rejected
each of Murray’s specific contentions supporting that premise. This Court incorporates by
reference here its prior analysis, which REX accurately summarizes in its briefing. (ECF Nos.
1035, 1056.)
Based on the record before this Court, the Commission did not err in following this
Court’s analysis as it did. The consequent result of this analysis led the Commission to properly
exclude evidence and to then conclude and recommend that no compensation is due to Murray.
Because this Court is in agreement with the Commission, the objections are not well taken for
the reasons set forth in greater detail previously.
This Court OVERRULES the objections (ECF No. 1062) and ADOPTS AND
AFFIRMS the November 22, 2011 Report and Recommendation of the Commission regarding

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the 6 West property (ECF No. 1060). It is the Order of this Court that a judgment is entered in
which Murray is not entitled to any compensation. The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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