Transcontinental Gas Pipe Line Company, LLC v. PERMANENT EASEMENT FOR

Filing 31

MEMORANDUM (Order to follow as separate docket entry) re 4 MOTION for Partial Summary Judgment and 7 MOTION for Preliminary Injunction for Possession of Rights of Way by March 20, 2017 filed by Transcontinental Gas Pipe Line Company, LLC. Signed by Honorable Matthew W. Brann on 3/24/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TRANSCONTINENTAL GAS PIPE
LINE COMPANY, LLC,

:
:
:
PLAINTIFF,
:
:
v.
:
:
PERMANENT EASEMENT FOR 2.59
:
ACRES, TEMPORARY EASEMENTS
:
FOR 5.45 ACRES AND TEMPORARY
:
ACCESS EASEMENT FOR 2.12 ACRES :
IN PINE GROVE TOWNSHIP,
:
SCHUYLKILL COUNTY,
:
PENNSYLVANIA, TAX PARCEL
:
NUMBER 21-04-0016.000, 361
:
CHAPEL DRIVE, PINE GROVE, PINE
:
GROVE TOWNSHIP, SCHUYLKILL
:
COUNTY, PA,
:
:
RYAN J. REGEC,
:
:
:
AND ALL UNKNOWN OWNERS,
:
:
DEFENDANTS.
:

Case No: 4:17-CV-00289
(Judge Brann)

MEMORANDUM OPINION
March 24, 2017
I.

BACKGROUND

On February 15, 2017, Plaintiff, Transcontinental Gas Pipe Line Company,
LLC, hereinafter “Transco,” filed a complaint in condemnation for both temporary
1

and permanent easements pursuant to Federal Rule of Civil Procedure 71.1 and the
Natural Gas Act, 15 U.S.C. § 717, et. seq. against the above captioned Defendants,
a parcel of land and its owner, Ryan J. Regec (hereinafter “Regec”). Previously,
on February 3, 2017, the Federal Energy Regulatory Commission, hereinafter
“FERC,” granted Transco a certificate of public convenience and necessity,
hereinafter “the certificate.” Having been granted the certificate, Transco filed suit
after being unable to negotiate the amount of compensation to be paid for the rightof-way with Regec, who demands compensation in excess of $3,000.
Transco intends to construct, operate and maintain pipeline for the Atlantic
Sunrise Project; construct new and make modifications to existing, compressor
stations; construct new and make modifications to existing, meter stations; make
modifications to existing regulator stations; and make modifications to existing
mainline valve locations in South Carolina, North Carolina, Virginia, Maryland,
and, as largely relevant here, 199.5 miles1 through Pennsylvania.2
On February 20, 2017, Transco filed a motion for partial summary judgment
and a motion for preliminary injunction.3 A hearing was held on these motions on

1

There are 980 tracts of land involved in this project. 977 have permitted Transco
access to the property to perform the necessary field survey work. The subject
property here is one of only three that have not been able to come to an agreement
with Transco. This is the only property under Middle District of Pennsylvania
jurisdiction, the other two are located in the Eastern District of Pennsylvania.
2
3

15 U.S.C.A. § 717f (h)
ECF Nos. 4 and 7.
2

March 23, 2017.4 After taking testimony and considering arguments from both
Transco and Regec, Transco’s two motions are granted.

II.

DISCUSSSION
a. Partial Summary Judgment will be granted in Transco’s favor as
there is no genuine dispute of material fact as the Defendant
admitted in his testimony the elements necessary for Transco’s
right of eminent domain.
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.”5 A fact is “material” where it “might affect the outcome of the suit
under the governing law.”6 A dispute is “genuine” where “the evidence is such
that a reasonable jury,” giving credence to the evidence favoring the nonmovant
and making all inferences in the nonmovant’s favor, “could return a verdict for the
nonmoving party.”7

4

The hearing was originally scheduled for March 14, 2017, because Transco was
seeking a March 20, 2017 property entry date. However, a major snowstorm,
named ‘Stella’ was forecasted (correctly) beginning the evening of the 13th
continuing through the 14th. For the safety and interest of all involved, on the 13th,
I continued the hearing to March 23, 2017.
5
Fed. R. Civ. P. 56(a).
6
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
7
Id.
3

The burden of establishing the nonexistence of a “genuine issue” is on the
party moving for summary judgment.8 The moving party may satisfy this burden
by either (i) submitting affirmative evidence that negates an essential element of
the nonmoving party’s claim; or (ii) demonstrating to the Court that the nonmoving
party’s evidence is insufficient to establish an essential element of the nonmoving
party’s case.9
Where the moving party’s motion is properly supported, the nonmoving
party, to avoid summary judgment in his opponent’s favor, must answer by setting
forth “genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.”10 For movants
and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed
must” be supported by “materials in the record” that go beyond mere allegations,
or by “showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.”11
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would

8

In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 331 (1986) (Brennan, J., dissenting)).
9
Id. at 331.
10
Anderson, 477 U.S. at 250.
11
Fed. R. Civ. P. 56(c)(1); see also Anderson, 477 U.S. at 248–50.
4

contradict the facts identified by the movant.’”12 Furthermore, “[i]f a party fails to
properly support an assertion of fact or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court may . . . consider the fact
undisputed for purposes of the motion.”13
In deciding the merits of a party’s motion for summary judgment, the court’s
role is not to evaluate the evidence and decide the truth of the matter, but instead to
determine whether there is a genuine issue for trial.14 Credibility determinations are
the province of the factfinder, not the district court.15 Although the court may
consider any materials in the record, it need only consider those materials cited.16
Section 717f(h) of the Natural Gas Act grants the right of eminent domain
for construction of pipelines, as follows:
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 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. The practice and procedure in any
12

Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir.
2003).
13
Fed. R. Civ. P. 56(e)(2).
14
Anderson, 477 U.S. at 249.
15
BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
16
Fed. R. Civ. P. 56(c)(3).
5

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.
“To condemn the easements at issue, [the gas company] must demonstrate it holds
a FERC certificate of public convenience and necessity; the rights-of-way to be
condemned are necessary for the construction, operation, and maintenance of the
pipeline; and it has been unable to acquire the proposed rights-of-way from the
landowner”17 and the landowner is demanding more than $3,000. “[A] certificate
of public convenience and necessity [therefore] gives its holder the ability to obtain
automatically the necessary right of way through eminent domain, with the only
open issue being the compensation the landowner defendant will receive in return
for the easement.”18
I find that there is no genuine issue of material fact as to Transco’s right to
eminent domain over the above captioned property. In fact, during crossexamination at the March 23, 2017 hearing, Defendant Regec admitted the
elements delineated in the Natural Gas Act for Transco to exercise eminent domain
in the form of both temporary and permanent easements on the subject property.
17

Columbia Gas Transmission, LLC v. An Easement To Construct, No. CV 161243, 2017 WL 544596, at *3 (W.D. Pa. Feb. 9, 2017)
18
Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less in Penn Tp., York
County, Pa., et. al, 768 F.3d 300, 304 (3d Cir. 2014).
6

There is no question that FERC has issued a certificate of public convenience and
necessity to Transco, a natural gas company as defined by the Natural Gas Act 15
U.S.C. § 717a(6). “By issuing the Certificate [of public necessity] to [Plaintiff],
FERC has determined that the Subject Property is necessary to the operation of the
Pipeline[; t]his determination cannot be challenged by Defendants.”19
Accordingly, then, it has been determined by a federal regulatory agency that the
rights-of-way to be condemned are necessary for the construction, operation, and
maintenance of the pipeline. Finally, despite attempts through good-faith
negotiations, Transco has been unable to acquire the proposed rights-of-way from
the landowner, who demands compensation in excess of $3,000.20 Partial
summary judgment will therefore be entered in favor of Transco as there remains
no genuine dispute of material fact.

19

WBI Energy Transmission, Inc., No. CV 14-130-BLG-SPW, 2017 WL 532281,
at *3 (D. Mont. Feb. 8, 2017) citing 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 conclusive.”).
20
Regec is demanding $300,000, which is 100 times the jurisdictional requirement
set forth in the Natural Gas act.
7

b. A preliminary injunction will be entered in Transco’s favor.
Because of the unique procedures associated with federal condemnation
actions arising under the Natural Gas Act, Plaintiff must first establish that it has a
substantive right to condemn the property at issue. Once a substantive right has
been found, a court “may exercise equitable power to grant the remedy of
immediate possession through the issuance of a preliminary injunction” pursuant to
Federal Rule of Civil Procedure 65, which governs the granting of preliminary
injunctions.21 “The [Natural Gas Act] does not allow for “quick take” powers; in a
condemnation action under the Act, we must evaluate access to property under the
preliminary injunction rubric of Federal Rule of Civil Procedure 65(c).”22 Rule 65
provides in pertinent part:
(a) Preliminary Injunction.
(1) Notice. The court may issue a preliminary injunction only
on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on the
Merits. Before or after beginning the hearing on a motion for a
preliminary injunction, the court may advance the trial on the
merits and consolidate it with the hearing. Even when
consolidation is not ordered, evidence that is received on the
motion and that would be admissible at trial becomes part of the

21

E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808, 828 (4th Cir. 2004); see also
Constitution Pipeline Co., LLC. v. A Permanent Easement for 1.92 Acres, 2015
WL 1219524, *2 (M.D. Pa. March 17, 2015).
22
Columbia Gas Transmission, LLC v. An Easement To Construct, No. CV 161243, 2017 WL 544596, at *4 (W.D. Pa. Feb. 9, 2017)
8

trial record and need not be repeated at trial. But the court must
preserve any party's right to a jury trial
...
(c) Security. The court may issue a preliminary injunction or a
temporary restraining order only if the movant gives security in an
amount that the court considers proper to pay the costs and damages
sustained by any party found to have been wrongfully enjoined or
restrained. The United States, its officers, and its agencies are not
required to give security.
“It is well established that ‘a preliminary injunction is customarily granted
on the basis of procedures that are less formal and evidence that is less complete
than in a trial or on the merits.’”23 “A preliminary injunction[, however,] is an
extraordinary remedy never awarded as of right.”24
Generally, a party seeking a preliminary injunction must establish four
factors: (1) a reasonable probability of success on the merits of their argument; (2)
irreparable harm to the movant in the absence of relief; (3) granting the preliminary
injunction will not result in greater harm to the nonmoving party; and (4) the
public interest favors granting the injunction.25 In the case at bar, the four factors
favor entering the preliminary injunction as requested by Transco.
First, Transco has succeeded on the merits. Rule 65 motions in eminent
domain cases are singular. Unlike preliminary injunctions in other types of civil

23

Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700, 718 (3d Cir. 2004)
(citing University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)).
24
Winter v. Natural Resources Defense Council, 555 U.S. 7, 24 (2008).
25
See American Exp. Travel Related Services, Inc. v. Sidamon-Eristoff, 669 F.3d
359, 366 (3d Cir. 2012).
9

actions, those sought in condemnation cases also request an entry of judgment on
the merits contemporaneously with the motion for preliminary injunction.
Whereas the question in other cases is the probability of success on the merits, in
this type of proceeding, a decision has been made on the merits. Therefore, given
the grant of partial summary judgment in favor of Transco’s substantive right to
condemn, the likelihood of success on the merits is established conclusively.
Accordingly, this factor favors Transco.
Second, Transco will suffer irreparable harm in the absence of injunctive
relief. Transco set forth several examples of irreparable harm both in its papers and
at the hearing. The first is monetary. In its brief supporting the motion, Transco
contends non-possession will cost $500,000 per month, and will delay revenues of
thirty-three million dollars ($33,000,000) per month because possession is
necessary in order to begin conducting field surveys. The testimony of David
Sztroin, hereinafter “Sztroin,” the pipeline project manager for the Atlantic Sunrise
Project, is consistent with Transco’s assertions. Sztroin testified that anticipated
revenues following the completion of this project are expected to be four-hundred
million dollars ($400,000,000) per year.

10

FERC set several conditions precedent for Transco, one of which is that
Transco conduct field surveys26 on the subject properties. Transco contends that it
cannot commence construction of the pipeline until after the remaining field
surveys are completed. FERC also set 43 other pre-construction conditions that
need to take place after the field surveys are complete and before construction
commences. Transco will suffer substantial costs and loss of profits if it cannot
begin the project as soon as possible.
The next type of irreparable harm set forth by Transco is that it will breach
contracts with both subcontractors and vendors if it cannot possess the subject
properties in a timely fashion. The contract with shippers is designed so that the
pipeline is in service by the 2017-2018 winter heating season. Sztroin testified that
the contracts with shippers were a prerequisite to filing with FERC, and breaking
those contracts would cause Transco to “lose credibility.” This argument also
militates against Plaintiff, as Transco has acknowledged that delays in obtaining

26

According to Sztroin’s testimony, there are several types of field surveys. There
are civil surveys, which demonstrate property boundaries, roads, streams, and the
like. There are environmental surveys of threatened and endangered species,
plans, wetlands, and water body surveys. There are cultural surveys, which are
comprised of two distinct sub-types. Above ground cultural surveys show
structures, fences, etc. Below ground cultural surveys show the “archeology.”
Both Sztroin and Regec testified that Regec had initially allowed Transco on
his property to being field surveying. At some point, Regec rescinded voluntary
access. Sztroin believes that the only field surveys that have been completed on
Regec’s property are the above ground historical survey and the threatened and
endangered species survey.
11

the FERC certificate have already caused it to miss that deadline, and the current
anticipated completion date for the project is now July 2018.
In further support of its irreparable harm argument, Transco contends that its
“in use” date will continue to be pushed back if possession is not ordered by March
31, 2017 because 12 of 43 preconditions set by FERC require re-submission to
FERC based on the results of the field surveys. Moreover, Transco sets forth that
the field surveys may well change the planned drawings from the engineers, and
could conceivably set that process back months as well. Sztroin explained that
each delay would have a “domino effect” that delays the entire project.
Transco also argues that it will experience other substantial delays in
completion if it is not granted immediate access. It asserts in its briefs, and Sztroin
testified consistently, that non-possession could set the project back an entire year
because it must conduct surveys on endangered and threatened species, including,
apparently, bog turtles, and that particular biodiversity survey is only permitted
between April 15 and June 15 each year. Additionally, certain work must be
completed in Pennsylvania prior to the annual October deadline for work on wild
trout streams. Specifically, Transco must install in-stream supports for equipment
bridges prior to October 1, 2017.
In sum, the Atlantic Sunrise Project is large in both scope and geography,
spanning five states. “The magnitude of the Project requires a complex and
12

coordinated construction process, with work activities being performed in
sequential phases”27 Each piece of the construction puzzle depends on the prior
piece timely placed. Untimeliness in one small part of this enormous project would
result in a domino effect on the timeliness of all other areas of the project. This
factor weighs strongly in favor of Transco.
Third, granting the preliminary injunction will not result in greater harm to
the landowner. The Court is mindful that Regec made several arguments as to the
harm to him. Regec is concerned about indemnification; he testified as to his
future plans to develop the property; and he argued that the taking is
unconstitutional.
Regec is demanding that Transco add him as an additional insured on its
insurance policy. This is unnecessary. Pennsylvania law already addresses this
issue of liability of easement holders.28 The possessor of land is liable for injury
on the property, and an easement holder can be found to be the possessor of land if
it possess “significant occupation and control of that land.”29 Moreover, as it
relates to the workers on the property, Pennsylvania’s Worker’s Compensation
“Act [] provides the sole and exclusive means of recovery for all such injuries…the

27

Sabal Trail Transmission, LLC v. +/- 0.41 Acres of Land in Hamilton Cty.
Florida, No. 3:16-CV-274-TJC-JBT, 2016 WL 3188985, at *3 (M.D. Fla. June 8,
2016)
28
See Blackman v. Fed. Realty Inv. Trust, 664 A.2d 139, 142 (Pa. Super. 1995).
29
Id.
13

Act expressly bars common law actions ‘for any injury or death occurring in the
course of employment.’”30
Regec also testified that he has prospective development plans for his
property. He is concerned that Transco’s easements will disrupt these future
plans.31 However, this is an argument that he both should have and did have the
opportunity to make to FERC prior to the issuance of the certificate. “The district
court's jurisdiction extends solely to examining the scope of the certificate and
ordering condemnation of property as authorized in the certificate.”32
Regec testified that he became aware of the project in 2014. Transco had
filed its project application March 31, 2015. FERC sent a letter to affected
landowners on October 22, 2015. FERC issued an Environmental Impact
Statement on May 5, 2016. The public comment period ran for 45 days from May
12, 2016 to June 27, 2016. FERC held four public comment meetings between

30

Hartwell v. Allied Chem. Corp., 320 F. Supp. 75, 77 (W.D. Pa. 1970)
With all due respect to Mr. Regec, his plans are speculative, at best. He testified
that he has owned the property since 2003. Although he has had property
surveyed, developed a proposal for financing, and dug both a well and septic on
one of the intended plots, he has neither subdivided the property, nor recorded his
plans with the county, nor has any construction begun. It is likely that Transco’s
pipeline would have little impact on his development plans should they
materialize. To the extent that they do, he will receive just compensation for that
taking.
32
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. 63.001-24.1, Town of Erin, Cty. of Chemung, N.Y., 552 F. App'x 37 (2d Cir. 2014)
14
31

June 13 and 16, 2016. FERC sent landowners letters regarding two alternative
pipeline routes on October 13, 2016. The additional public comment period ran for
30 days. FERC issued a comment for a draft General Conformity Determination
on November 3, 2016. FERC issued a final Environmental Impact Statement on
December 30, 2016. On February 3, 2017 FERC authorized the Atlantic Sunrise
Project and granted Transco a certificate of public convenience and necessity.
“When a property owner comes to federal court to challenge FERC's
findings in the certificate of public convenience and necessity, the property owner
thereby mounts what in essence is a collateral attack on that certificate."33 “The
court does not have jurisdiction to review a collateral attack on the FERC
certificate."34 “District courts have limited jurisdiction in Natural Gas Act
condemnation actions.”35 “This court's role is mere enforcement.”36

33

Steckman Ridge GP, LLC v. Exclusive Natural Gas Storage Easement Beneath
11.078 Acres, 2008 U.S. Dist. LEXIS 71302, 13-14 (W.D. Pa. Sept. 19, 2008)
(Gibson, J.).
34
Williams Natural Gas Co. v. City of Okla. City, 890 F.2d 255, 262 (10th Cir.
1989).
35
Sabal Trail Transmission, LLC v. +/- 0.41 Acres of Land in Hamilton Cty.
Florida, No. 3:16-CV-274-TJC-JBT, 2016 WL 3188985, at *2 (M.D. Fla. June 8,
2016), see also 15 U.S.C.A. § 717r(b); Guardian Pipeline, L.L.C. v. 529.42 Acres
of Land, 210 F. Supp. 2d 971, 974 (N.D. Ill. 2002) (“The validity and conditions of
the FERC Certificate cannot be collaterally attacked in district court.”); Williams
Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 262 (10th Cir.1989), cert.
denied, 497 U.S. 1003, 110 S.Ct. 3236, 111 L.Ed.2d 747 (1990) (“Review of the
validity of the certificate is the exclusive province of the appropriate court of
appeals.”).
15

Regec also argued that the taking is unconstitutional. It is not. “The mere
exercise of the sovereign's power of eminent domain is not offensive to due
process.”37 It is hornbook law that “a State may transfer property from one private
party to another if future “use by the public” is the purpose of the taking.”38 Here,
there is no violation of Regec’s First, Fifth, and Fourteenth Amendment rights as
the Natural Gas Act is constitutional as “affecting interstate commerce,”
“development satisfies the “public use” requirement of the Fifth Amendment,”39
and Regec had notice and opportunity to be heard before FERC and will have
further notice and opportunity to be heard before this Court as to the amount of
compensation to be determined.40 Moreover, “The Fifth Amendment guarantees

36

Id. citing Tennessee Gas Pipeline Co. v. Massachusetts Bay Transportation
Authority, 2 F.Supp.2d 106, 110 (D.Mass.1998).
37
Collier v. City of Springdale, 733 F.2d 1311, 1313 (8th Cir. 1984).
38
Kelo v. City of New London, Conn., 545 U.S. 469, 477, 125 S. Ct. 2655, 2661,
162 L. Ed. 2d 439 (2005).
39
Id. at 477.
40
See Public Service Co. of North Carolina, Inc. v. Federal Energy Regulatory
Commission, 587 F.2d 716 (5th Cir. 1979) (the state can engage in takings), and see
Transcontinental Gas Pipe Line Corp. v. Hackensack Meadowlands Development
Commission, 464 F.2d 1358 (3d Cir. 1972) certiorari denied 93 S.Ct. 909, 409
U.S. 1118, 34 L.Ed.2d 701 (Interstate transmission and sale of natural gas is within
the regulatory ambit of U.S.C.A.Const. Art. 1, § 8, cl. 3), and see Saturn Oil &
Gas Co. v. Federal Power Com'n, 250 F.2d 61, (10th Cir. 1957) certiorari denied
78 S.Ct. 542, 355 U.S. 956, 2 L.Ed.2d 532 (Natural Gas Act does not contravene
Fifth Amendment), and see National Fuel Gas Supply Corp. v. Town of Wales, 904
F.Supp.2d 324 (W.D.N.Y. 2012) (no violation of due process when notice and
opportunity to be heard provided prior to taking).
16

the landowners just compensation for their land no matter when the condemnor
takes possession.”41
For all of these reasons, this factor favors Transco.
Fourth, granting the preliminary injunction is in the public interest as it will
give the general public access to natural gas from the Marcellus Shale deposits for
heating their homes and businesses. Stzroin testified that this pipeline will
transport 1.7 million decotherms of natural gas to the North East and Mid Atlantic
markets. “Congress passed the Natural Gas Act and gave gas companies
condemnation power to insure that consumers would have access to an adequate
supply of natural gas at reasonable prices.”42 This factor, therefore, also favors
Transco.
In sum, the motion for preliminary injunction will be granted. It is
commonplace for district courts to order immediate possession after FERC has
taken a lengthy period of time determining whether or not to issue a certificate of
public convenience and necessity. “District courts in a number of jurisdictions

41

E. Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808, 829 (4th Cir. 2004).
E. Tennessee Nat. Gas Co. v. Sage, 361 F.3d at 830, citing Clark v. Gulf Oil
Corp., 570 F.2d 1138, 1145–46 (3d Cir.1977); Fla. Power & Light Co. v. Federal
Energy Regulatory Comm'n, 598 F.2d 370, 379 (5th Cir.1979); Public Serv.
Comm'n of Ky. v. Federal Energy Regulatory Comm'n, 610 F.2d 439, 442–43 (6th
Cir.1979).
17
42

grant immediate possession in the form of a preliminary injunction to a gas
company that has established its right to condemn under the [Natural Gas Act].”43
c. A bond will be Ordered.
The Constitution "does not provide or require that compensation be paid in
advance of the occupancy of the land to be taken. But the owner is entitled to
reasonable, certain, and adequate provision for obtaining compensation before his

43

Tennessee Nat. Gas Co. v. Sage, 361 F.3d at 827 citing Northwest Pipeline Corp.
v. The 20' by 1,430' Pipeline Right of Way, 197 F.Supp.2d 1241, 1245
(E.D.Wash.2002)(“[w]here there is no dispute about the validity of [the gas
company's] actual right to the easement,” denying authority to grant immediate
possession “would produce an absurd result”); Guardian Pipeline, L.L.C. v. 950.80
Acres of Land, 210 F.Supp.2d 976, 979 (N.D.Ill.2002)(immediate possession
proper when condemnation order has been entered and preliminary injunction
standards have been satisfied); N. Border Pipeline Co. v. 64.111 Acres of Land,
125 F.Supp.2d 299, 301 (N.D.Ill.2000)(same); see also N. Border Pipeline Co. v.
127.79 Acres of Land, 520 F.Supp. 170, 173 (D.N.D.1981) (“the Court believes the
circumstances of this case warrant the exercise of inherent powers”); Williston
Basin Interstate Pipeline Co. v. Easement and Right–of–Way Across .152 Acres of
Land, 2003 WL 21524816 (D.N.D.2003)(same); Tenn. Gas Pipeline Co. v. New
England Power, Inc., 6 F.Supp.2d 102, 104 (D.Mass.1998)(same); USG Pipeline
Co. v. 1.74 Acres, 1 F.Supp.2d 816, 825–26 (E.D.Tenn.1998)(same); Kern River
Gas Transmission Co. v. Clark County, 757 F.Supp. 1110, 1117
(D.Nev.1990)(same); Humphries v. Williams Natural Gas Co., 48 F.Supp.2d 1276,
1280 (D.Kan.1999)(“[I]t is apparently well settled that the district court does have
the equitable power to grant immediate entry and possession [under the Natural
Gas Act].”); Rivers Electric Co., Inc. v. 4.6 Acres of Land, 731 F.Supp. 83, 87
(N.D.N.Y.1990)(granting immediate possession under a statute similar to the
Natural Gas Act). Cf. Commercial Station Post Office, Inc. v. United States, 48
F.2d 183, 184–85 (8th Cir.1931)(holding that government officer who exercises
statutory authority to file condemnation action may take immediate possession of
the property even though there is no express provision authorizing pre-judgment
possession).
18

occupancy is disturbed."44 Accordingly, Transco will be ordered to post a surety
bond with the Clerk of Court on or before March 30, 2017.
Transco appraised the value of the 10.2 acres to be condemned as $8,100.
Regec concludes that $300,000 is perhaps a more appropriate amount, as he
believes that one-half of the total 78 acres of property will be taken by Transco.
Regec’s value is excessive; Transco is not seeking to condemn one-half his
property but merely one-eighth of his property. Transco is offering to post a bond
that is four times the appraised value of the property that it is seeking to condemn.
I find the proposed bond amount of $32,400 to be reasonable. “We fully
understand that condemnation often forces landowners to part with land that they
would prefer to keep for many reasons, including sentimental ones.”45 “However,
the Supreme Court long ago recognized that “in view of the liability of all property
to condemnation for the common good, loss to the owner of nontransferable values
deriving from his unique need for property or idiosyncratic attachment to it ... is
properly treated as part of the burden of common citizenship.””46

44

Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641, 659 (1890).
Id.
46
Id citing Kimball Laundry Co. v. United States, 338 U.S. 1, 5, (1949).
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45

d. The Order will contain an enforcement mechanism
Transco indicates that third parties have expressed their intention to engage
in civil disobedience. Transco acknowledged that Regec himself has not indicated
any intention to do so.
Third parties are hereby on notice that I have the authority and “inherent
power to enforce compliance with [its] lawful orders through civil contempt.”47
Defendant or any third parties who are contemplating violating the terms of this
Memorandum Opinion and the accompanying Order should understand and
appreciate that the Order contains an enforcement mechanism so that any person
unwise enough to violate its terms shall be haled into Court by the United States
Marshals Service and a contempt hearing conducted.48
III.

CONCLUSION

An Order will issue this date granting Plaintiffs Motions for Partial Summary
Judgment and for Preliminary Injunction. Plaintiff will be directed to post a surety
bond with the Clerk of Court. Commencing March 31, 2017, pursuant to the Order
of the Federal Regulatory Commission dated February 3, 2017, Plaintiff
Transcontinental Gas Pipe Line Company, LLC is granted access to, possession of
and entry to the rights of way allowed under that Order for the above captioned

47

Cooper v. Aaron, 358 U.S. 1 (1958); and see Shillitani v. United States, 384
U.S. 364 (1966).
48
Roe v. Operation Rescue, 919 F.2d 857, 868 (3d Cir. 1990)
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property. The Order will include an enforcement mechanism to deter those who
seek to obstruct Plaintiff.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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