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

Filing 31

MEMORANDUM (Order to follow as separate docket entry) re: 5 MOTION for Partial Summary Judgment filed by Transcontinental Gas Pipe Line Company, LLC. Signed by Honorable Matthew W. Brann on 8/15/2017. (jn)

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

:
:
:
Plaintiff
:
:
v.
:
:
PERMANENT EASEMENT FOR 0.78 :
ACRES, PERMANENT OVERLAY
:
EASEMENT FOR 0.28 ACRES,
:
TEMPORARY EASEMENT FOR 0.53 :
ACRES, AND TEMPORARY ACCESS :
EASEMENTS FOR 0.13 ACRES IN
:
LAKE TOWNSHIP, LUZERNE
:
COUNTY, PENNSYLVANIA, TAX
:
PARCEL NUMBER 37-E5-00A-024- :
000, LOYALVILLE ROAD, LAKE
:
TOWNSHIP, LUZERNE COUNTY, PA :
:
4P REALTY, LP, 4P MANAGEMENT, :
INC., GENERAL PARTNER OF
:
4P REALTY LP,
:
:
ALL UNKNOWN OWNERS,
:
:
Defendants.
:

No. 4:17-CV-00571

(Judge Brann)

MEMORANDUM OPINION
AUGUST 15, 2017
I.

BACKGROUND

On March 30, 2017, Plaintiff, Transcontinental Gas Pipe Line Company, LLC,
hereinafter “Transco,” filed a complaint in condemnation pursuant to Federal Rule
1

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
“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 April 12, 2017, Transco filed a motion for partial summary judgment.2 On
August 2, 2017, the parties filed a stipulation as to a motion for preliminary
injunction, that included a statement that Defendants have stipulated that Transco
has the substantive right to condemn. Because the parties did not explicitly state
that they are stipulating as to the motion for partial summary judgment in addition
to the motion for preliminary injunction, for the sake of completeness on the record
this Memorandum Opinion memorializes the finding that Transco has the

1
2

15 U.S.C.A. § 717f (h)
ECF No. 5.

2

substantive right to condemn while addressing the arguments contained in
Defendants opposing briefs.
II.

DISCUSSION
a. Partial Summary Judgment will be granted in Transco’s favor.
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.”3 A fact is “material” where it “might affect the outcome of the suit
under the governing law.”4 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.”5
The burden of establishing the nonexistence of a “genuine issue” is on the
party moving for summary judgment.6 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.7
3

Fed. R. Civ. P. 56(a).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
5
Id.
6
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)).
7
Id. at 331.
4

3

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.”8 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.”9
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’”10 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.”11
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 to

8

Anderson, 477 U.S. at 250.
Fed. R. Civ. P. 56(c)(1); see also Anderson, 477 U.S. at 248–50.
10
Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003).
11
Fed. R. Civ. P. 56(e)(2).
9

4

determine whether there is a genuine issue for trial.12 Credibility determinations are
the province of the factfinder, not the district court.13 Although the court may
consider any materials in the record, it need only consider those materials cited.14
With that standard of review in mind, 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
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 (1) it
holds a FERC certificate of public convenience and necessity; (2) the rights-of-way
to be condemned are necessary for the construction, operation, and maintenance of
the pipeline; and (3) it has been unable to acquire the proposed rights-of-way from
12

Anderson, 477 U.S. at 249.
BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
14
Fed. R. Civ. P. 56(c)(3).
13

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the landowner.”15 “[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.”16
Defendants’ two arguments both focus on just compensation. First,
Defendants dispute Transco’s valuation of the property to be condemned. Second,
Defendants argue that Transco did not engage in “good faith” negotiations.
Defendants’ dispute Transco’s appraised value of the property. However,
this argument is not relevant to Transco’s substantive right to condemn -- the
subject of the instant motion. The Constitution “does not provide or require that
compensation be paid in advance of the occupancy of the land to be taken.”17 “The
amount of compensation…[has] no effect on [the gas company’s] rights to the
easements.”18 Defendants may rest assured, however, that they are entitled to
reasonable, certain, and adequate provision for obtaining compensation before
occupancy is disturbed.19 Transco will be required to post a bond well in excess of
its valuation of the property.

15

Columbia Gas Transmission, LLC v. An Easement To Construct, No. CV 16-1243, 2017 WL
544596, at *3 (W.D. Pa. Feb. 9, 2017)
16
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).
17
Id. at 315.
18
Id.
19
Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641, 659, 10 S.Ct. 965, 34 L.Ed. 295 (1890).

6

Defendants argue that Transco did not negotiate in good faith. Defendants’
argument as to “good faith” negotiations fails as well. Although “some courts
have imposed a requirement that the condemnor engage in good faith
negotiations,”20 I have never imposed a “good faith” requirement. Moreover, “the
United States Court of Appeals for the Third Circuit has not yet taken a position on
the matter, and federal district courts in Pennsylvania have refused to impose a
good faith requirement.”21 Furthermore, “the plain language of the NGA does not
impose an obligation on a holder of a FERC certificate to negotiate in good faith
before acquiring land by exercise of eminent domain.”22
In the case at bar, I find that there is no genuine issue of material fact as to
the three conditions precedent. 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). The rights-of-way to be condemned are
necessary for the construction, operation, and maintenance of the pipeline. “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

20

UGI Sunbury LLC v. A Permanent Easement for 0.4944 Acres, No. 3:16-CV-00783, 2016 WL
3254986, at *6 (M.D. Pa. June 14, 2016) (Brann, J.).
21
Id.
22
Id. citing Steckman Ridge GP, LLC v. An Exclusive Natural Gas Storage Easement Beneath
11.078 Acres, 2008 WL 4346405 at *13 n. 3 (W.D. Pa. Sept. 19, 2008) (Gibson, J.) (citing
Kansas Pipeline Company v. A 200 Foot By 250 Foot Piece of Land, 210 F.Supp.2d 1253, 1257
(D. Kansas 2002)).

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determination cannot be challenged by Defendants.”23 Finally, despite its attempts
through negotiations, Transco has been unable to acquire the proposed rights-ofway from the landowner. Accordingly, partial summary judgment will be entered
in favor of Transco.
III.

CONCLUSION

An Order will issue this date granting Plaintiff’s Motion for Partial Summary
Judgment.

BY THE COURT:

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

23

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.”).

8