COLUMBIA GAS TRANSMISSION, LLC v. AN EASEMENT TO CONSTRUCT, OPERATE AND MAINTAIN A 20-INCH GAS TRANSMISSION PIPELINE ACROSS PROPERTIES IN ALLEGHENY COUNTY, PENNSYLVANIA, OWNED BY UNKNOWN HEIRS OF PATRICK PACE (PARCEL ID 0584-M-30) et al
MEMORANDUM OPINION re 6 MOTION for Partial Summary Judgment and Immediate Access filed by COLUMBIA GAS TRANSMISSION, LLC, and 12 MOTION for Summary Judgment filed by COLUMBIA GAS TRANSMISSION, LLC. For the reasons stated in the opinion, the court will grant the motion for summary judgment 12 and will grant in part the motion for partial summary judgment and immediate access, granting the motion for partial summary judgment and denying as moot the motion for immediate access. Appropriate orders will follow. Signed by Chief Judge Joy Flowers Conti on 1/10/2018. (msp)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
COLUMBIA GAS TRANSMISSION,
AN EASEMENT TO CONSTRUCT,
OPERATE AND MAINTAIN A 20INCH GAS TRANSMISSION
PIPELINE ACROSS PROPERTIES IN
PENNSYLVANIA, OWNED BY
UNKNOWN HEIRS OF PATRICK
PACE (PARCEL ID 0584-M-30),
LILLIAN MCKEE HARRIS,
UNKNOWN HERIS AND ASSIGNS
(PARCEL ID 9929-X-01958), SARAH
AGNES MCDONALD, UNKNOWN
HEIRS AND ASSIGNS (PARCEL ID
9929-X-01962), and UNKNOWN
PERSONS AND INTERESTED
) CIVIL ACTION NO. 17-1191
) JUDGE JOY FLOWERS CONTI
CONTI, Chief District Judge
The court held a hearing today on a motion for partial summary judgment and immediate
access (ECF No. 6) and a motion for summary judgment (ECF No. 12) in the above captioned
Plaintiff Columbia Gas Transmission, LLC (“plaintiff” or “Columbia Gas”) brought this
federal condemnation action in accordance with Federal Rule of Civil Procedure 71.1 governing
proceedings to condemn real property and pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h),
with respect to three parcels of property located in Allegheny County (“three parcels” or the
“properties”), Parcel Id. No. 584-M-30, Parcel Id. No. 9929-X-01958, and Parcel Id. No. 9929X-01962. Specifically, plaintiff seeks easements on these properties to replace or repair existing
gas pipelines to ensure the safety and reliability of the pipeline as part of a larger gas pipeline
In support of its motions for summary judgment (ECF Nos. 6 and 12), plaintiff filed its
appendix with five exhibits, (ECF No. 7); its concise statement of material facts not in dispute
(Exhibit 8)(referred to herein as “CSMF ¶ __”), and its briefs in support (ECF Nos. 9 and 13).
Local Civil Rule of Court 56.E specifically provides that facts claimed to be undisputed and
material in a party’s concise statement “will for the purpose of deciding the motion for summary
judgment be deemed admitted unless specifically denied or otherwise controverted by a separate
concise statement of the opposing party.” LCvR 56.E. Here, because no response has been filed,
plaintiff’s concise statement of material facts are deemed admitted.
Plaintiff also submitted the following evidence in support of summary judgment:
the Certificate of Public Convenience and Necessity issued by the Federal Energy
Regulatory Commission (Exhibit A);
the Declaration of Anthony J. Sulkowski, JR. P.E., the project manager (Exhibit B);
Description and Plat of Easements on Parcel ID No. 0584-M-30 (Exhibit C);
Description and Plat of Easements on Parcel ID No. 9929-X-01958 (Exhibit D); and
Description and Plat of Easements on Parcel ID No. 9929-X-01962 (Exhibit E).
(ECF No. 7).
No defendant filed an answer to this action or any response to the motions for summary
judgment or the Concise Statement of Material Facts, although plaintiff provided additional
notice by publication of this hearing in accordance with the court’s December 12, 2017 order.
(ECF Nos. 11, 16-1). In accordance with Federal Rule of Civil Procedure 71.1(e)(3), defendants
by not answering waived all objection and defenses, except to the amount of compensation to be
This condemnation action is governed by Federal Rule of Civil Procedure 71.1. At a trial
in a matter for federal action of condemnation, the court is the factfinder in accordance with Rule
71.1(h)(1). Here, however, plaintiff seeks summary judgment, and accordingly, the court applies
the standards under Federal Rule of Civil Procedure 56, in determining if plaintiff is entitled to
summary judgment. Plaintiff also sought immediate access to the properties as part of its partial
motion for summary judgment and seeks through its motion for complete summary judgment an
order of judgment of taking by eminent domain with respect to the properties.
Standard for Summary Judgment
Summary judgment may only be granted where the moving party shows that there is no
genuine dispute as to any material fact, and that judgment as a matter of law is warranted. FED. R.
CIV. P. 56(a). The burden on a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 is initially on the moving party to demonstrate that the evidence contained in the
record does not create a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co.,
364 F.3d 135, 140 (3d Cir. 2004); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d
Cir.1996). A dispute is “genuine” if the evidence is such that a reasonable trier of fact could render
a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005).
Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its
burden by showing that the admissible evidence contained in the record would be insufficient to
carry the nonmoving party’s burden of proof or that there is an absence of evidence to support the
nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 325 (1986); Marten v.
Godwin, 499 F.3d 290, 295 (3d Cir.2007). Where, however, as here, the moving party bears the
burden of proof, “if there is a chance that a reasonable factfinder would not accept a moving party's
necessary propositions of fact, pre-trial judgment cannot be granted. Specious objections will not,
of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the
evidence, and doubts as to the sufficiency of the movant's proof, will.” Wallace v. Nat’l Indem.
of Mid-Am., 2:14-cv-1253, 2016 WL 6948781, at *3, n.2 (W.D. Pa. July 8, 2016) (citing El v. Se.
Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007).
Once the movant meets its burden, the burden shifts to the nonmoving party to “set forth
specific facts showing that there is a genuine issue for trial” and to present sufficient evidence
demonstrating that there is indeed a genuine and material factual dispute for a jury to decide. Fed.
R. Civ. P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex, 477
U.S. at 323–25. The nonmoving party must go beyond the pleadings and designate specific facts
by the use of affidavits, depositions, admissions or answers to interrogatories showing that there
is a genuine issue of material fact for trial. Id. at 324. The nonmoving party cannot defeat a wellsupported motion for summary judgment by simply reasserting unsupported factual allegations
contained in pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
The summary judgment inquiry asks whether there is a need for trial—“whether, in other
words, there are any 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.” Liberty Lobby, 477 U.S. at 250.
In ruling on a motion for summary judgment, the court's function is not to weigh the evidence,
make credibility determinations or to determine the truth of the matter, but only to determine
whether the evidence of record is such that a reasonable jury could return a verdict for the
nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000)
(citing decisions); Liberty Lobby, 477 U.S. at 248–49; Simpson v. Kay Jewelers, Div. of Sterling,
Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998). In evaluating the evidence, the court must interpret the
facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his
or her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). Inferences based upon
speculation or conjecture, however, do not create a material factual dispute sufficient to defeat a
motion for summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir.
Natural Gas Act and Commission Determination
The Natural Gas Act applies to the transportation of natural gas in interstate commerce.
15 U.S.C. § 717(b). Columbia is an interstate natural gas company engaged in the transportation
and storage of natural gas in interstate commerce under the Natural Gas Act, 15 U.S.C. § 717a,
and subject to the jurisdiction of the Federal Energy Regulatory Commission (the
“Commission”) in accordance with § 717a(d)(6). (Ex. A at 4, ¶ 3).
By order dated February 1, 2016, the Commission approved Columbia Gas’ application
for a certificate of public convenience and necessity authorizing Columbia to construct, operate,
and abandon natural gas pipeline and above ground facilities in order to replace three segments
of existing aging infrastructure in Allegheny, Greene, and Washington Counties, Pennsylvania,
along its existing Line 1570 (“Tri-County Bare Steel Replacement Project” or “project”). CSMF
¶ 2; Ex. A. The Commission issued a certificate of public convenience and necessity
(“certificate”) with respect to replacing the existing gas pipeline in several counties, including
Allegheny County wherein the three parcels relevant to this action are located. (Ex. A.). The
properties relevant to this action are located in the third segment of the Tri-County Bare Steel
Replacement Project. (Ex. A at 6, ¶ 7). Additionally, as found by the Commission, Columbia
Gas has taken the necessary steps to minimize adverse impacts of the project to landowners and
communities. (Ex. A. ¶ 19).
Section 717f(h) of the Natural Gas Act grants the right of eminent domain relevant to this
action. That section provides:
(h) Right of eminent domain for construction of pipelines, etc.
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. 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.
15 U.S.C. § 717f(h).
Plaintiff’s efforts to locate owners of property to be taken
Plaintiff took reasonably diligent efforts to locate the owners of the properties by
engaging its abstractors to search publicly available records, including the Offices of the
Prothonotary, the Recorder of Deeds, the Treasurer, the Allegheny County Real Estate Portal and
Tax Assessor’s website, as well as the Register of Wills and guardianship estate records. Its
abstractors also searched online genealogy resources and websites such as rootsweb.com,
ancestry.com, and familytree.com. Columbia also searched its own internal records to
supplement the record title search. It was able to locate all other property owners, but was
unable to locate the owners of the three properties at issue in this action. (ECF No. 4, ¶¶ 3, 4).
Because the identity of the owners of the property involved in this condemnation
proceeding were unknown despite diligent efforts, service of this action upon defendants was by
publication in accordance with Federal Rule of Civil Procedure 71.1(d)(3)(B) (governing service
by publication in condemnation actions), (ECF Nos. 4; 4-1), and no defendant responded.
Additionally, plaintiff provided notice by publication of today’s hearing in accordance with the
court’s order on December 12, 2017 (ECF Nos. 11, 16-1), and no defendant appeared.
Specifically, Columbia Gas seeks by condemnation:
an easement to be taken on Parcel Id. No. 0584-M-30, owned by the unknown heirs of
Patrick Pace, which is a temporary workspace of 0.08 acres for the construction of the
pipeline and appurtenant facilities as depicted on the survey map. (ECF Nos. 1, ¶ 10; 1-3
an easement to be taken on Parcel ID No. 9929-X-01958, owned by Lillian McKee
Harris, Unknown Heirs and Assigns, which is a temporary workspace of 0.11 acres for
the construction of the pipeline and appurtenant facilities as depicted on the survey map.
(ECF Nos. 1, ¶ 11; 1-4 at 2-3); and
easements to be taken on Parcel ID No. 9929-X-01962, owned by Sarah Agnes
McDonald, Unknown Heirs and Assigns, which are a permanent easement of 133 square
feet, less than 0.01 acres, a temporary workspace totaling .08 acres, and additional
temporary workspace of .10 acres for the construction of the pipeline and appurtenant
facilities as depicted on the survey map. (ECF Nos 1, ¶ 12; 1-5 at 2-3).
Columbia Gas further asserts that it needs access to these properties by January 18, 2018,
in order to meet the deadline for gas needs for the 2018-1019 winter heating season, which is due
in part to restriction from work clearing the right-of-way during April 1, 2018, through October
15, 2018, in order to protect endangered bat species. (ECF No. 8, ¶¶ 16-19.)
Plaintiff Entitled to Take the Easements by Eminent Domain under the
Natural Gas Act
Section 7(h) of the Natural Gas Act, 15 U.S.C. § 717f (h), provides the right of natural
gas suppliers holding a certificate of public convenience and necessity, such as Columbia Gas, to
exercise eminent domain where they are unable to acquire the required rights-of-way or
necessary land to construct, operate, and maintain natural gas pipe line transportation, including
the location of compressor stations or equipment to operate the pipe lines. As to these three
properties, Columbia Gas, who is a holder of a certificate of public convenience and necessity,
cannot acquire the easements for the necessary right-of way with respect to the project either by
contract or with respect to agreement with the owner as to the compensation to be paid because it
has been unable to locate and contact the owners through diligence. (ECF No. 8 at 2, ¶ 4). Thus,
pursuant to § 717f(h), Columbia Gas is entitled to condemn the property by taking the easements
Request for Immediate Access
Plaintiff with its initial motion for partial summary judgment also requested immediate
access to the properties to complete clearing and complete necessary gas pipe line repair and
replacement in advance of the 2018-2019 winter heating season and to meet commitments to the
Commission and local government, CSMF ¶ 16, for its project to replace the existing 20-inch gas
pipeline with a new 20-inch pipeline that involves the necessity for access to the properties in
advance to clear portions of the land to repair and replace the pipeline.
Plaintiff indicates that it needs access to the properties by January 15, 2018, in order to
complete clearing for segment 3 prior to March 31, 2018, in order to not disturb certain protected
bat species located along segment 3 and to honor commitments to the U.S. Fish and Wildlife
Service to protect threatened bat species, and comply with its permit. CSMF ¶¶ 17, 18. This
timeline is further required in order to complete the replace and repair work by the winter season.
CSMF ¶¶ 16, 18. Line 1570 provides natural gas to local distribution companies which provide
service to the Pittsburgh metropolitan area. CSMF ¶ 11. The public will suffer substantial harm
if Columbia is unable to safely and efficiently provide natural gas to the Pittsburgh metropolitan
area from line 1570 by completing this project. CSMF ¶¶ 11, 19.
Because the court will enter a judgment order of taking by condemnation with respect to
the easements upon the three parcels, and the order will be entered prior to January 15, 2018,
plaintiff will be entitled to access the properties, making the request for “immediate access”
Upon taking, the deprived party is entitled to just compensation. United States v. Certain
Parcels of Land, 144 F.2d 626, 629, (3d Cir. 1994). In Kirby Forest Industries, Inc. v. United
States, 467 U.S. 1, 4 n.2 (1984), the Court acknowledged that former Federal Rule of Civil
Procedure 71A(h), which was the precursor to Rule 71.1(h), created a nationally uniform practice
for federal condemnation proceedings. Where, as here, plaintiff has brought this condemnation
proceeding under the federal power of eminent domain, state law procedure with respect to
condemnation is inapplicable, the procedure established by Rule 71.1(h) governs and the matter
is tried to the court under Rule 71.1(h)(2). Northern Border Pipeline Co. v. 64.111 Acres of
Land in Will County, Illinois, 344 F.3d 693, 694 (7th Cir. 2003); Guardian Pipeline, L.L.C. v.
295.49 Acres of Land, Nos. 08-C-0028, 08-C-54, 08-C-29, 08-C-30, 2008 WL 1751358 (E.D.
Wis. April 11, 2008).
If a party in a matter involving the federal power of condemnation seeks a jury to
determine valuation, the court within its discretion may determine valuation itself or appoint a
commission or jury to determine valuation. Northern Border Pipeline Co., 344 F.3d at 694;
Guardian Pipeline, L.L.C. v. 295.49 Acres of Land, Nos. 08-C-0028, 08-C-54, 08-C-29, 08-C30, 2008 WL 1751358 (E.D. Wis. Apr. 11, 2008); see Columbia Gas Transmission, LLC v. An
Easement to Construct, Operate and Maintain a 20-inch Gas Transmission Pipeline Across
Properties in Washington County, Pennsylvania, No. 16-1243, 2017 WL 544596 (W.D. Pa. Feb.
The guarantee of just compensation:
also applies where the Government takes only a portion of the bundle of rights in
property held by a landowner. Where the Government condemns only a part of a
landowner's holding—as in the case of its taking [ ] easements—just
compensation is measured by the difference between the market value of the
entire holding immediately before the taking and the remaining market value
immediately thereafter of the portion of property rights not taken.
United States v. 68.94 Acres of Land, More or Less, Situate in Kent Cty., State of Del., 918 F.2d
389, 393 n.3 (3d Cir. 1990).
Columbia Gas contends in its filings that the diminution of value as a result of the
easements taken by condemnation here is minimal because the easements are upon land that
appears to be abandoned property and strips of vacant land. The defendant landowner in a
federal condemnation proceeding bears the burden of establishing just compensation, United
States ex rel. and for Use of Tennesee Valley Authority v. Powelson, 319 U.S. 266, 273 (1943),
which ordinarily is satisfied through expert testimony. United States v. 429.59 Acres of Land,
612 Fl2d 459, 462 (9th Cir. 1980). Nominal damages are appropriate because although defendant
landowners are entitled to “just compensation” for the taking, they did not appear to contest the
condemnation and taking or to offer a valuation, must less evidence through any expert, and thus
necessarily did not meet their burden of establishing just compensation. Hardy Storage Co.,
LLC v. An Easement to Construct, Operate and Maintain 12-inch and 20-inch Gas Transmission
Pipelines Across Properties in Hardy, Civ. Act. Nos. 2:06CV7 & 2:07CV5, 2009 WL 900157
(N.D. W.Va. Mar. 31, 2009) (summary judgment awarding $600.00 with respect to just
compensation where landowner failed to establish with admission evidence the diminution in
value and plaintiff offered $600.00 in compensation); see Carey v. Piphus, 435 U.S. 247, 266
(1978) (plaintiff may recover nominal damages in case of constitutional injury even if no
compensable injury shown).
In these circumstances, where defendants did not meet their burden and particularly
where the easements are in minimal size and scope and over vacant and abandoned property,
nominal damages are appropriate as plaintiff urges. Plaintiff, like the plaintiff in Hardy Storage
Co., should, however, suggest to the court an actual amount of nominal damages for the court to
award with respect to each property. Columbia Gas urges that nominal damages be awarded.
Accordingly, plaintiff is entitled to a judgment of taking by condemnation in favor of
plaintiff and against defendants, with an award in the amount of $400.00 in nominal damages for
Parcel Id. No. 0584-M-30; in the amount of $550.00 in nominal damages for Parcel Id. No.
9929-X-01958; and in the amount of $931.00 in nominal damages for Parcel Id. No. 929-X-
01962 in favor of defendants and against plaintiff for just compensation to be paid into the
court’s registry in accordance with Federal Rule of Civil Procedure 67(a) for the easements
taken. Appropriate orders will follow.
BY THE COURT,
Dated: January 10, 2018
/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?