Columbia Gas Transmission, LLC v. 101 Acres, and 41,342 Sq. Ft More or Less in Heidelberg Township, York County, Pennsylvania, Located on Tax ID# 30000EE01600000000, Owned By Bradley E. Herr and Elizabeth M. Herr et al

Filing 38

MEMORANDUM (Order to follow as separate docket entry) re 13 MOTION for Partial Summary Judgment and for Immediate Possession of the Easements filed by Columbia Gas Transmission, LLC. Signed by Honorable Matthew W. Brann on 10/24/13. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
COLUMBIA GAS
TRANSMISSION, LLC,
Plaintiff
v.
1.01 ACRES, MORE OR LESS
IN PENN TOWNSHIP, YORK
COUNTY, PENNSYLVANIA,
LOCATED ON TAX
ID# 440002800150000000, OWNED
BY DWAYNE P. BROWN AND
ANN M. BROWN, et al.,
Defendants.
COLUMBIA GAS
TRANSMISSION, LLC,
Plaintiff
v.
101 ACRES, AND 41,342 SQ. FT.
MORE OR LESS IN HEIDELBERG
TOWNSHIP, YORK COUNTY,
PENNSYLVANIA, LOCATED ON
TAX ID# 30000EE01600000000,
OWNED BY BRADLEY E. HERR
AND ELIZABETH M. HERR, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
•
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

Case No. 4:13-cv-00778

(Judge Brann)

Case No. 4:13-cv-00783

(Judge Brann)

COLUMBIA GAS
TRANSMISSION, LLC,
Plaintiff

:
:
:
:
v.
:
:
1.5561 ACRES, MORE OR LESS
:
IN HEIDELBERG TOWNSHIP,
:
YORK COUNTY,
:
PENNSYLVANIA, LOCATED ON :
TAX ID# 30000ED010300000000, :
OWNED BY MYRON A. HERR
:
AND MARY JO HERR, et al.,
:
:
Defendants.
:
•
COLUMBIA GAS
:
TRANSMISSION, LLC,
:
Plaintiff
:
:
v.
:
:
1.010 ACRES, MORE OR LESS
:
IN PENN TOWNSHIP, YORK
:
COUNTY, PENNSYLVANIA,
:
LOCATED ON TAX
:
ID# 440002800240000000, OWNED :
BY DOUGLAS W. HILYARD AND :
TESSA J. HILYARD, et al.,
:
:
Defendants.
:

Case No. 4:13-cv-00785

(Judge Brann)

Case No. 4:13-cv-00786

(Judge Brann)

MEMORANDUM
October 24, 2013
For the following reasons, the Court denies the motions of Columbia Gas
2

Transmission, LLC (hereinafter, “Columbia Gas”) for partial summary judgment
and for immediate possession of certain easements.
I.

Background
The parties agree1 that Columbia Gas is an interstate natural gas company

subject to the jurisdiction of the Federal Energy Regulatory Commission
(hereinafter, “FERC”). Columbia Gas currently operates a natural gas pipeline that
runs in and around York County, Pennsylvania. The pipeline has been designated
“Line 1655,” and the Court will adopt this nomenclature.
Columbia Gas comes to this Court because it wants to replace and reroute a
portion of Line 1655 away from the Line’s current location, which has become
heavily populated.2 Columbia Gas envisions a new and improved Line 1655 that, at
the widest point, diverts approximately a quarter-mile from the old one. This
diversion in effect takes Line 1655 out from under the land where Columbia Gas

1

The facts recited are taken from the parties’s respective L.R. 56.1
statements of fact filed in each case, as well as from the parties admissions at oral
argument on October 10, 2013.
2

“[Line 1655] was placed in service about 60 years ago. . . . It goes through
what has now been identified as a high consequence area, an HCA. . . . To sort of
put it in laymen’s terms, you put a pipeline in the ground in 1950 and the
communities grow up around it. So it’s no longer an area that you necessarily want
to have a pipeline in, particularly one that is 60 years old.” (Oral Ar. Tr., Oct. 10,
2013).
3

currently has pipeline easements, and removes it some distance yonder to plots
where Columbia Gas does not possess such easements. Columbia Gas negotiated
with distant landowners to obtain the easements necessary to construct the
replacement Line 1655, but no satisfactory arrangement could be struck with
respect to the property of at least four landowning couples: Dwayne and Ann
Brown; Bradley and Elizabeth Herr; Myron and Mary Jo Herr; and Douglas and
Tessa Hilyard. Negotiations having failed, in March, 2013, Columbia Gas filed suit
in this Court, naming the land of the four couples and the couples themselves as
defendants (hereinafter, the “landowners”), and asserting the right to take the
easements by power of eminent domain.
On May 24, 2013, eager to commence and complete construction of the
replacement pipeline, Columbia Gas filed a motion for partial summary judgment
and for immediate possession of the necessary easements.
II.

Standard of Review
The “right to condemn the property in question” is a “threshold requirement”

for awarding Columbia Gas immediate possession of the necessary easements. E.
Tennessee Natural Gas Co. v. Sage, 361 F.3d 808, 825 (4th Cir. 2004).
Accordingly, the Court should first determine whether Columbia Gas’s motion for
partial summary judgment – which purportedly establishes Columbia Gas’s right to
4

condemn the easements – is meritorious. If the motion lacks merit, then there is no
need to consider the additional factors that control whether Columbia Gas is
entitled to immediate possession of the easements.
Summary judgment is appropriate where “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 fact is “material” where it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that
a reasonable [fact-finder],” giving credence to the evidence favoring the
nonmovant and making all reasonable inferences in the nonmovant’s favor, “could
return a verdict for the nonmoving party.” Id.
III.

Discussion
Columbia Gas’s argument for summary judgment sends the Court page-

flipping through the Code of Federal Regulations as follows. On or about January
7, 1983, FERC issued Columbia Gas a certificate of public convenience and
necessity (hereinafter, the “certificate”) that authorizes Columbia Gas to “conduct
many routine activities . . . on a self-implementing basis without further
authorization by the Commission.” (Ex. 2, ECF No. 1-4, at 2 (hereinafter, “Ex.

5

2”)).3 Among other things, the certificate automatically authorizes Columbia Gas’s
performance of “the activities specified in Subpart F of Part 157 of the
Commission’s Regulations, as amended from time to time.” (Ex. 2, at 4). Subpart F
of Part 157 of the Commission’s Regulations provides, in turn, that as long as the
project does not cost more than $11,000,000, Columbia Gas is automatically
“authorized to make miscellaneous rearrangements of any facility, or acquire,
construct, replace, or operate any eligible facility.”18 C.F.R. §§ 157.203(a)-(b),
157.208(a) & (d). In relevant part, “eligible facility” includes “main line, lateral,
and compressor replacements that do not qualify under § 2.55(b) of [Chapter I of
C.F.R. Title 18] because they will result in an incidental increase in the capacity of
main line facilities, or because they will not satisfy the location or work space
requirements of § 2.55(b).” 18 C.F.R. § 157.202(b)(2)(i).
Section 2.55(b) is an exemptive provision that relieves natural gas
companies from the generally applicable requirement of having to obtain a
certificate of public convenience for “the construction or extension of any
facilities.” 15 U.S.C. § 717f(c). Specifically, it exempts “[f]acilities which
constitute the replacement of existing facilities that have or will soon become

3

Citations to record documents refer to the docket in 4:13-cv-00778 unless
otherwise noted.
6

physically deteriorated or obsolete, to the extent that replacement is deemed
advisable, if . . . [t]he replacement facilities . . . will be located in the same
right-of-way or on the same site as the facilities being replaced, and will be
constructed using the temporary work space used to construct the original facility.”
Given these provisions, Columbia Gas argues that replacement Line 1655 is
an automatically authorized “replace[ment]” of an “eligible facility” because the
project “will not satisfy the location or work space requirements of § 2.55(b).”
That is, the diverted pipeline will not be “located in the same right-of-way or on
the same site as the facilities being replaced,” as required by § 2.55(b), with the
upshot that the replacement Line 1655 is an “eligible facility” that Columbia Gas’s
certificate automatically authorizes. (Pl. Supp. Br., ECF No. 14, at 1-6).
As far as the authority to take the necessary easements goes, Columbia Gas
relies on 15 U.S.C. §717f(h), which provides that:
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, and the necessary land or other property,
in addition to right-of-way, 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, or
in the State courts.
7

Columbia Gas argues that, taken altogether, the applicable regulations and its
eminent domain authority give it the right to condemn the necessary easements.
The Court, however, sees a fly in the ointment. Specifically, the Court
disagrees with Columbia Gas’s position that replacement Line 1655 can be
relocated approximately a quarter-mile away from the old Line 1655 to circumvent
a population center and still be considered an “eligible facility.”
Columbia Gas’s contention (as expressed by counsel at oral argument on
October 10, 2013) is that its certificate automatically authorizes relocation of
replacement Line 1655 literally anywhere on earth, so long as the replacement
“will not satisfy the location or work space requirements of § 2.55(b).” But this
interpretation of the regulations puts an excessively expansive gloss on the
common meaning of “replace,” see Webster’s Third New International Dictionary,
Unabridged, s.v. “replace,” accessed October 23, 2013,
http://unabridged.merriam-webster.com (“1: to place again: restore to a former
place, position, or condition”), a term that generally does not imply significant
relocation. Moreover, Columbia Gas’s interpretation is seemingly contrary to the
structure of the regulations, which equate the “relocation of existing facilities” with
another defined term, “miscellaneous rearrangement,” see 18 C.F.R. §

8

157.202(b)(6), not with “replacement[],” see 18 C.F.R. § 157.202(b)(2)(i). The
meaning of “replacements that do not qualify under § 2.55(b) of this chapter
because they . . . will not satisfy the location or work space requirements of §
2.55(b),” is, at best, ambiguous as it relates to Columbia Gas’s replacement Line
1655.
In the face of this ambiguity, the Court looks to the relevant agency’s
interpretation of its own regulations. See Decker v. Nw. Envtl. Def. Ctr., 133 S.Ct.
1326, 1337 (2013) (“When an agency interprets its own regulation, the Court, as a
general rule, defers to it unless that interpretation is plainly erroneous or
inconsistent with the regulation.”) (internal quotation marks omitted). Here, the
relevant agency is FERC, which provided a fairly definitive interpretation of the
operative provisions in 2003 when it proposed new rules to give pipeline
companies greater flexibility to reconstruct pipelines during emergencies caused by
“deliberate effort[s] to disrupt the flow of natural gas.” See Emergency
Reconstruction of Interstate Natural Gas Facilities Under the Natural Gas Act, 68
Fed. Reg. 4120 (proposed Jan. 17, 2003) (to be codified at 18 C.F.R. pt. 157).
Speaking of the authority then-available to pipeline companies, the agency
explained:
[P]art 157, subpart F, permits replacement construction that uses
9

temporary workspace beyond the bounds of the temporary workspace
previously used to construct the original facilities as necessary to install
replacement facilities. These regulations also permit locating a portion
of mainline, lateral, or compressor replacement facilities outside, but
presumably adjacent to, an existing right-of-way where, for whatever
reason, the new facilities could not be placed entirely within the original
facilities’ existing right-of-way. These regulations, however, do not
appear to contemplate mainline construction over an entirely different
route as may be necessary to circumvent the site of a disaster if
immediate replacement is necessary before the original site is again
available.
Emergency Reconstruction, 68 Fed. Reg. at 4122. The agency repeated this general
idea a number of times: “part 157 . . . does not permit the extensive deviation from
an existing right-of-way that would presumably be necessary to circumvent a
restricted or quarantined area,” id. at 4123; “[part 157] was broadened
incrementally in 1999 to [allow] mainline replacements . . . that . . . did not lie
within the original facilities’ footprint, and consequently were outside of the
section 2.55(b) replacement parameters . . . [but] this modification in the breadth of
eligible facilities did not contemplate the more extensive rerouting that would be
required to reach around a cordoned accident area,” id.; “[the 1999 broadening of
part 157] recognized the need to grant natural gas companies the flexibility to act
under blanket certificate authority to replace facilities where construction of new
facilities might spill over the original temporary workspace or permanent
right-of-way . . . [but did not] envision[] replacement of facilities outside the
10

existing right-of-way by the creation of an entirely new route due to the need to
circumvent an accident site,” id. at 4123 n.20.
Part 157 ultimately was amended to give pipeline companies additional
authority during emergencies, see 68 Fed. Reg. 31596 (May 19, 2003), but
Columbia Gas concedes that there is no emergency here (Oral Ar. Tr., Oct. 10,
2013). Accordingly, Columbia Gas must rely on the provisions of Part 157 that
FERC interpreted in its 2003 notice of proposed rulemaking, quoted at length
supra.
Applying the regulations as interpreted by FERC (the Court does not find
FERC’s interpretation “plainly erroneous or inconsistent with the regulation”) to
replacement Line 1655, it is plain that the project is not automatically authorized as
“replace[ment]” of an “eligible facility” pursuant to 18 C.F.R. §§157.202(b)(2)(i)
& 157.208(a). The right-of-way necessary for replacement Line 1655 is not
“outside, but . . . adjacent to” old Line 1655's right-of-way; it does not merely
“spill over [from] the original temporary workspace or permanent right-of-way.”
Rather, Columbia Gas is avowedly rerouting replacement Line 1655 to avoid a
congested area, necessitating a new right-of-way approximately a quarter-mile
distant. It is, to paraphrase, “creat[ing] . . . an entirely new route due to the need to
circumvent [a congested area].” Accordingly, replacement Line 1655 cannot be
11

properly characterized as the “replace[ment]” of an “eligible facility.”
For that reason alone, Columbia Gas’s motion for partial summary judgment
must be denied, and because Columbia Gas has not established the right to
condemn the necessary easements at this time, its motion for immediate possession
must also be denied.4
Since Columbia Gas has expressly disavowed that replacement Line 1655
constitutes a “miscellaneous rearrangement” (Oral Ar. Tr., Oct. 10, 2013) – defined
in relevant part by regulation as “any rearrangement of a facility . . ., including . . .
relocation of existing facilities: . . . (ii) [w]hen required by . . . encroachment of

4

The Court notes two things. First, defendants Bradley E. Herr and Elizabeth
M. Herr (and their property) failed to respond to Columbia Gas’s motion for partial
summary judgment. In accordance with Anchorage Assoc. v. Virgin Islands Bd. of
Tax Review, 922 F.2d 168 (3d Cir. 1990), and L.R. 7.6 & 56.1, this effects a
“waiver of the [Herr’s] right to controvert the facts asserted by [Columbia Gas] in
the motion for summary judgment or the supporting material accompanying it.”
Anchorage Assoc., 922 F.2d at 175-76. This does not result in Columbia Gas’s
victory on the motion, however, because even accepting that all of the facts
asserted by Columbia Gas are undisputed, the analysis supra reveals that Columbia
Gas is not entitled to judgment as a matter of law. Id. at 176.
Second, for those defendants other than Bradley E. Herr and Elizabeth M.
Herr, the Court is inclined to deny Columbia Gas’s motion for partial summary
judgment at this time for the additional reason that the defendants should be given
the opportunity to properly controvert Columbia Gas’s assertion that the
replacement Line 1655 project meets the cost requirements of 18 C.F.R. §
157.208(d), including the opportunity for additional discovery beyond the 60 days
allowed after the July 9, 2013 case management conference. See Fed. R. Civ. P.
16(b)(4) & 56(e)(1).
12

residential, commercial, or industrial areas” – the Court does not consider whether
the replacement Line 1655 project could have been automatically authorized as
such.5
IV.

Conclusion
For the foregoing reasons, the Court denies the motions of Columbia Gas

Transmission, LLC (hereinafter, “Columbia Gas”) for partial summary judgment
and for immediate possession of certain easements.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

5

Both parties apparently agree that a “miscellaneous rearrangement” of
facilities can be performed only on the same property as the existing facilities.
(See Def. Opp’n Br., ECF 19, at 7-8; Oral Ar. Tr., Oct. 10, 2013). It is not clear to
the Court why this should be so. See 18 C.F.R. § 157.202(b)(6) (listing three
characteristics of “miscellaneous rearrangements” in the disjunctive, indicating that
the first listed characteristic – that the rearrangement occur “(i) on the same
property” – is not required if one of the other two apply). See also Texas E.
Transmission Corp., 82 FERC P 62071 (1998) (holding that relocation of pipeline
“35 feet to the northeast of the existing pipeline and [affecting] approximately 3.51
acres of land and one landowner, in addition to [the landowner of the location of
the existing facilities and requiring] new permanent right-of-way,” qualified as
“miscellaneous rearrangement”).
13