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

Filing 20

MEMORANDUM (Order to follow as separate docket entry) re: 13 MOTION for Preliminary Injunction for Possession of Rights of Way by August 18, 2017 filed by Transcontinental Gas Pipe Line Company, LLC. Signed by Honorable Matthew W. Brann on 8/9/2017. (jn)

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

:
:
:
Plaintiff
:
:
v.
:
:
TEMPORARY ACCESS EASEMENT :
FOR 0.21 ACRES IN MOUNT
:
PLEASANT TOWNSHIP, COLUMBIA :
COUNTY, PENNSYLVANIA, TAX
:
PARCEL NUMBER 26 ,03-026-00,000, :
25 MELLICK HOLLOW ROAD,
:
MOUNT PLEASANT TOWNSHIP,
:
COLUMBIA COUNTY, PA 17815,
:
:
JAMES E. MCGETTIGAN and
:
LINDA K. MCGETTIGAN,
:
:
AND ALL UNKNOWN OWNERS,
:
:
Defendants.
:

No.: 4:17-CV-00546

(Judge Brann)

MEMORANDUM OPINION
AUGUST 9, 2017
I.

BACKGROUND

On March 28, 2017, Plaintiff, Transcontinental Gas Pipe Line Company, LLC,
hereinafter “Transco,” filed a complaint in condemnation pursuant to Federal Rule
of Civil Procedure 71.1 and the Natural Gas Act, 15 U.S.C. § 717. Previously, on
February 3, 2017, the Federal Energy Regulatory Commission, hereinafter
1

“FERC,” granted Transco a certificate of public convenience and necessity.
Transco filed suit after proving unable to negotiate the amount of compensation to
be paid for the right-of-way with the Defendants in order to construct, operate and
maintain a 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
miles through Pennsylvania.1
On May 31, 2017, I entered an Order granting Transco’s unopposed motion for
partial summary judgment and held that Transco has the substantive right to
condemn the subject property.2
On June 29, 2017, Transco filed a motion for preliminary injunction.3 A
hearing was held on the motion on August 3, 2017. The Defendant landowners did
not appear at the hearing. I polled the courtroom and found Defendants James E.
and Linda K. McGettigan were not present. Additionally, I asked my court
security officer to check the courthouse to attempt to locate the McGettigans. The
court security officer confirmed that they were not present.

1

15 U.S.C.A. § 717f (h)
ECF No. 10.
3
ECF No. 13.
2

2

After taking testimony and hearing arguments from Transco, the motion is
granted.
II.

DISCUSSION
a. A preliminary injunction will be entered in Transco’s favor.
Defendants have not made any attempts to oppose the motion for

preliminary injunction. Defendants’ brief opposing the motion for preliminary
injunction was due July 14, 2017. Defendants failed to file an opposing brief.
Middle District Local Rule 7.6 states that any party who fails to file a timely
opposing brief “shall be deemed not to oppose such motion.” As discussed above,
I held a hearing on the motion for preliminary injunction. As noted, Defendants
failed to appear at the hearing. When Defendants “do not appear at the scheduled
hearing, the Court may enter a preliminary injunction against them by default.”4
Accordingly, the preliminary injunction will be granted procedurally, for failing to
appear and defend the action; it will also be granted substantively, for the reasons
that follow.
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
4

Chanel, Inc. v. chanelonline-outletbags.com, No. 14-61559-CIV, 2014 WL 11881011, at *3
(S.D. Fla. Aug. 11, 2014).

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immediate possession through the issuance of a preliminary injunction” pursuant to
Federal Rule of Civil Procedure 65, which governs the granting of preliminary
injunctions.5 “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).”6 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
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.

5

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).
6
Columbia Gas Transmission, LLC v. An Easement To Construct, No. CV 16-1243, 2017 WL
544596, at *4 (W.D. Pa. Feb. 9, 2017)

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“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.’”7 “A preliminary injunction[, however,] is an
extraordinary remedy never awarded as of right.”8
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.9 The United States Court of Appeals
for the Third Circuit has recently clarified the standard. “A movant for preliminary
equitable relief must meet the threshold for the first two “most critical” factors: it
must demonstrate that it can win on the merits (which requires a showing
significantly better than negligible but not necessarily more likely than not) and
that it is more likely than not to suffer irreparable harm in the absence of
preliminary relief.”10 “If these gateway factors are met, a court then considers the
remaining two factors and determines in its sound discretion if all four factors,

7

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)).
8
Winter v. Natural Resources Defense Council, 555 U.S. 7, 24 (2008).
9
See American Exp. Travel Related Services, Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d
Cir. 2012).
10
Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017).

5

taken together, balance in favor of granting the requested preliminary relief.”11 In
the case at bar, the four factors favor entering the preliminary injunction as
requested by Transco.
First, Transco has succeeded on the merits. Unlike preliminary injunctions
in other types of civil actions, those sought in condemnation cases also request an
entry of judgment on the merits contemporaneously with the motion for
preliminary injunction. Therefore, given the grant of partial summary judgment on
May 31, 2017, finding Transco’s substantive right to condemn, the likelihood of
success on the merits is established. Accordingly, this factor favors Transco.
Second, Transco will suffer irreparable harm in the absence of preliminary
relief. Transco set forth several examples of irreparable harm both in its papers and
at the hearing. The first is monetary. Transco contends non-possession will cost it
$500,000 per month, and will delay revenues of thirty-three million dollars
($33,000,000) per month because Transco needs possession in order to begin
construction. David Sztroin, the project manager for this project, testified
consistently at the August 3, 2017 hearing. 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

11

Id.

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properties in a timely fashion. The contract with shippers was designed so that the
pipeline is in service by the 2017-2018 winter heating season. I note that this
argument also cuts against Plaintiff, as Transco has acknowledged that delays in
obtaining the FERC certificate have already caused it to miss that deadline; the
current anticipated completion date for the project is now July 2018. On the other
hand, Transco argues that its “in use” date will continue to be pushed back even
further if possession is not ordered by August 18, 2017. 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 of the project if it is not granted access. It asserts that non-possession
could set construction back an entire year because it must conduct surveys on
endangered and threatened wildlife species that are only permitted during certain
dates 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
coordinated construction process, with work activities being performed in

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sequential phases”12 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 landowners. Here, the landowners have failed to appear and defend throughout
the pendency of this action. The FERC certificate of public convenience and
necessity lists timely and untimely intervenors.13 The landowners did not attempt
to intervene during the FERC proceedings. Landowners have not answered the
complaint; they failed to file any opposing briefs; no counsel entered an
appearance in this matter. The landowners appeared to have ignored the matter in
its entirety. Accordingly, I can discern no harm to landowner. Transco has the
substantive right to possession.
“We fully understand that condemnation often forces landowners to part
with land that they would prefer to keep for many reasons, including sentimental
ones.”14 “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
12

Sabal Trail Transmission, LLC v. +/- 0.41 Acres of Land in Hamilton Cty. Florida, No. 3:16CV-274-TJC-JBT, 2016 WL 3188985, at *3 (M.D. Fla. June 8, 2016)
13
Plaintiff’s Exhibit 1 at August 3, 2017 preliminary injunction hearing, pages 73 and 79.
14
Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641, 659 (1890).

8

attachment to it ... is properly treated as part of the burden of common
citizenship.’”15
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 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].”16

15

Id citing Kimball Laundry Co. v. United States, 338 U.S. 1, 5, (1949).
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).
16

9

Moreover, “the court does not have jurisdiction to review a collateral attack
on the FERC certificate.”17 “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.”18 “District courts have limited jurisdiction in Natural Gas Act
condemnation actions.”19 “This court's role is mere enforcement.”20
For 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. “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.”21 This factor, therefore, also
favors Transco.

17

Williams Natural Gas Co. v. City of Okla. City, 890 F.2d 255, 262 (10th Cir. 1989).
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.).
19
Sabal Trail Transmission, LLC v. +/- 0.41 Acres of Land in Hamilton Cty. Florida, No. 3:16CV-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.”).
20
Id. citing Tennessee Gas Pipeline Co. v. Massachusetts Bay Transportation Authority, 2
F.Supp.2d 106, 110 (D.Mass.1998).
21
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,
18

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For all of these reasons, Transco’s motion for preliminary injunction is
granted.
b. 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.”22 “But the owner is entitled to
reasonable, certain, and adequate provision for obtaining compensation before his
occupancy is disturbed.”23 Accordingly, Transco will be ordered to post a surety
bond with the Clerk of Court on or before August 16, 2017.
c. The Order will contain an enforcement mechanism
Transco indicates that third parties have expressed their intention to engage
in civil disobedience. I have the authority and “inherent power to enforce
compliance with lawful orders through civil contempt.”24 Defendants and any
third parties who are contemplating violating the terms of this Memorandum
Opinion and the accompanying Order are on notice 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 Marshal and a contempt hearing will be
conducted.25

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).
22
Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641, 659 (1890).
23
Id.
24
Cooper v. Aaron, 358 U.S. 1 (1958); and see Shillitani v. United States, 384 U.S. 364 (1966).
25
Roe v. Operation Rescue, 919 F.2d 857, 868 (3d Cir. 1990)

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III.

CONCLUSION
An Order will issue this date granting Plaintiff’s Motion for Preliminary

Injunction. Plaintiff will be ordered to post a surety bond with the Clerk of Court.
Commencing August 18, 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 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

12