Transcontinental Gas Pipe Line Company, LLC v. Permanent easement totaling 2.322 acres, more or less, and temporary easements totaling 3.209 acres, more or less, over a parcel of land in Brunswick County, Virginia of approximately 83.00 acres in et al

Filing 67

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 09/02/14. (kyou, )(copy mailed to Pro se party)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
CLERK, U.S. DISTRICT COURT

TRANSCONTINENTAL GAS PIPE LINE

RICHMOND, VA

COMPANY, LLC,

Plaintiff,
Civil Action No.: 3:14-cv-00400-HEH

v.

Permanent easement totaling 2.322 acres,
more or less, and temporary easements
totaling 3.209 acres, more or less, over a

parcel of land in Brunswick County, Virginia
of approximately 83.00 acres in size, as more
particularly described herein,
et al.,
Defendants.

MEMORANDUM OPINION

(Granting Defendant's Motion for Partial Summary Judgment
and Preliminary Injunction for Possession by September 2, 2014)
THIS MATTER is before the Court on the Motion for Partial Summary Judgment

(ECF No. 33) and the Omnibus Motion for Preliminary Injunction for Possession by

September 2, 2014 (ECF No. 35) (collectively, "Preliminary Motions") filed by the
Plaintiff, Transcontinental Gas Pipe Line Company, LLC ("Plaintiff or "Transco"). This

Court by Order (ECF No. 64) entered on August 21, 2014 provided Constance Watkins
("Defendant" or "Ms. Watkins") additional time to respond, as she proceeded in this
matter as a pro se litigant and was the sole defendant to provide a response to Plaintiffs

Complaint. The Defendant's response (ECF No. 66) was filed on August 27, 2014.
Accordingly, the matter is now ripe for disposition.

To be clear, the only issue beforethe Court is right of entry onto and possession of
the land for the installation of pipeline. Issues related to compensation, both amount and

form, will be adjudicated separately. For the reasons stated below, the Court will grant
Transco's Preliminary Motions and award Plaintiff the requested Permanent, Temporary

Construction, and Temporary Access Road easements as outlined in the survey plat.
(Compl., ECF No. 1, Ex. C thereto.)
I. BACKGROUND

Transco is a natural gas pipeline company subject to regulation by the Federal

Energy Regulatory Commission under the Natural Gas Act ("NGA" or "the Act"),
codified at 15 U.S.C. §§ 717-717z. On November 21, 2013, the Federal Energy

Regulatory Commission ("FERC") issued Transco a Certificate of Public Convenience
and Necessity ("FERC Certificate"). See Transcontinental Gas Pipe Line Co. LLC, 145

F.E.R.C. 1161,152, 2013 WL 6137661. In accordance with the FERC Certificate, Plaintiff
intends to build nearly 100 miles of a new 24-inch interstate natural gas pipeline

("Virginia Southside Expansion Project" or "the Project") in multiple states. (Compl. at H
15.) The Project will allowTransco to transport natural gas from north to south, to

provide natural gas from a "pooling point" in New Jersey to a new natural gas-fired
power station that a Dominion Virginia Power ("DVP") affiliate is building in Brunswick
County, Virginia. Transcontinental Gas, 2013 WL 6137661, at *4.
The Virginia portion of the Project involves construction of a new 24-inch natural

gas pipeline from Transco's main line in Pittsylvania County, eastward through Halifax,
Charlotte, Mecklenberg, and Brunswick Counties. Id. at *1. Approximately the first 91
miles of the new pipeline ("SVL-B") will be constructed roughly parallel to Transco's

existing 20-inch South Virginia Lateral-A pipeline ("SVL-A") which has been in

operation since the 1960s. Id To minimize impact on landowners, nearly 90 percent of

SVL-B will be constructed within or immediately adjacent to the existing rights-of-way
that Transco acquired when it constructed the SVL-A. Transcontinental Gas, 2013 WL
6137661, at *4.

Transco filed the Complaint in this action on June 5, 2014, and theNotices of

Condemnation (ECF Nos. 3-31, 39-40, 43) on June 6, June 12, and June 16, seeking to
condemn a permanent easement together with certain temporary construction easements
and a temporary access road easement over real property in which defendant has an

interest, which isa parcel of land located in Brunswick County, Virginia, described as
follows:

All that certain tract or parcel of land situate in Powellton

Magisterial District, Brunswick County, Virginia, containing
eighty-two and one-half (82.5) acres, be the same more or

less, and bounded as follows, to-wit; on the north by the
lands of Stephen Reavis, dec'd' on the east by the lands of
Ira Green, dec'd' on the south by the lands of A. T. James,
dec'd, and a public road; and on the west by the lands of
Johnny Travis, dec'd, being the tract or parcel of land
granted to Alfred James by Daniel Travis, and others, in a
partition deed dated December 27, 1889, recorded in the
Clerk's Office of the Brunswick County, Virginia, in Deed

Book 45 at Page 483, less a parcel thereof, containing, by
estimation, twelve acres, which was granted to Alfred T.
James by Alfred James, by deed dated January 26, 1895,

recorded in the said Clerk's Office in Deed Book 47 at Page
718, reference to which deeds is here made for a more

detailed description thereof.

Being the same real estate

conveyed to Alfred James by Deed of Partition from Alfred

James and Martha Ann, his wife, Ira Green and Mary, his
wife, and Daniel Travis and Louisa, his wife, dated
December 27, 1889 and recorded December 30, 1889 in the

Clerk's Office of the Circuit Court of Brunswick County,
Virginia in Deed Book 45, Page 483.

(Compl. at U3 (citing Land Records of Brunswick County)
("the Property")).

Pursuant to the FERC Certificate, the easements that Transco seeks to condemn in

this action are shown and described on the survey plat and legal description prepared by a
Virginia Certified Land Surveyor. (Compl., Ex. Bthereto; Transcontinental Gas, 2013

WL 6137661, at *20). More specifically, the Permanent will be used for the purposes of
laying, constructing, maintaining, replacing, and operating the a 24-inch pipeline.
(Compl. at H36.) The Temporary Construction and Access Road easements will be

utilized for work related to the construction ofthe Project. (Compl. atffll 39-41.)
Transco was unable to negotiate the terms of the easements with Defendant, therefore
Transco properly filed its Complaint in this Court for condemnation of the easements

pursuantto 15 U.S.C. § 717f(h). (PI. Br. Supp. Mot. for Summ. J., Ex. B thereto,
Declaration of Timothy Chastain. at UK 8-9.)

Ms. Watkins argues in her response to Plaintiffs motion for injunctive reliefthat

she is asserting the rights of others served by Transco as well, contending that they did
not actually receive notice.

Two of the known defendants named in the Complaint have consented in writing
to, and accepted full payment for, the easement interests that Transco seeks in this action.

These defendants are Sylvia Lash Holman and Dora G. James, who have since been

dismissed (ECF Nos. 56, 57) from this action. Consequently, only the remaining twenty-

one known defendants, in addition to any unknown owners, have any right to receive an
award of compensation in this action.

For the reasons stated in Transco's Reply Brief(ECF No. 62), the Court finds that

all defendants were validly served with process as required by Fed. R. Civ. P. 71.1(d)(3)
and that the 21 day period within which they were required to respond has passed. The
only defendant who filed any response within the required 21 day period was Ms.

Watkins, with her letter dated July 3, 2014, which the Court treated as her Answer (ECF
No. 53). Accordingly, under Fed. R. Civ. P. 71.1(e)(3), all of the defendants served in

this action, with the exception of Ms. Watkins, have waived all objections and defenses
to Transco's condemnation of the easements at issue.

Transco's Preliminary Motions, which included a properRoseboro v. Garrison

Notice to any Pro Se Defendants pursuant to Local Civil Rule 7(K) (ECF No. 33), were

served oneach of the defendants along with the Notice of Condemnation and Complaint.
None of the defendants—including any unknown heirs, beneficiaries, or owners—

responded within either the 11-day period thereafter, as required by Local Rule 7(F)(1),
or the 21-day period thereafter, as required by Local Rule 7(K)(1) for any pro se
Defendants. Therefore, under the authority of Local Rule 7(K)(2) and Fed. R. Civ. P.

56(e), the Court will consider Transco's two Preliminary Motions to be unopposed, and
accept as true and correct the facts asserted inthe Preliminary Motions and supporting

briefs, declarations, and documentary evidence, and rule on the papers without a hearing
with respect to all of the defendants, including Ms. Watkins. See also Custer v. Pan Am.

Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993) (recognizing that failing to respond to a

summary judgment motion entitles the district court to treat the motion as unopposed and
the facts stated therein as uncontroverted).

While the Court granted Ms. Watkins additional time to file her response to the
Preliminary Motions, her letter is unsworn, therefore, the letter will not betreated as a

proper response. See Holloway v. Tesemma, 2014 WL 1571965, at *4 (E.D. Va. Apr. 18,
2014) (citing U.S. v. White, 366 F.3d 291, 300 (4th Cir. 2004)). Accordingly, the Court
will consider Transco's two Preliminary Motions to be unopposed. See Fed. R. Civ. P.
56(e); E.D. Va. Local Rule 7(K)(2); Tesemma, 2014 WL 1571965 at *4.

Even if this Court were to consider Ms. Watkins' letter filed onAugust 27, 2014
to be a proper response to the Preliminary Motions, it fails to present a persuasive basis to
deny the requested easements.
II. STANDARD OF REVIEW

A. Summary Judgment

Summary judgment is appropriate where the record demonstrates "that there is no

genuine issue as to any material fact and that the moving party is entitled tojudgment as
a matter of law." Fed. R. Civ .P. 56(c). A "genuine issue of material fact" exists "if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., All U.S. 242, 247-48 (1986). Thus, the court must

view the record in the light most favorable to the nonmoving party, and must draw all
reasonable inferences in its favor. SeeBryant v. BellAtl. Md, Inc., 288 F.3d 124, 132
(4th Cir. 2002).

B. Preliminary Injunction

The Fourth Circuit has held that once a district court determines that a gas
company has the substantive right to condemn property under the Act, the court may
exercise its equitable power to grant the remedy ofimmediate possession through the
issuance ofa preliminary injunction. See E. Tenn. Natural Gas Co. v. Sage, 361 F.3d
808, 828 (4th Cir. 2004). Although a special rule of civil procedure in federal courts

governs condemnation actions the remainder of the federal rules apply "except as
otherwise provided" by Rule 71A. Fed. R. Civ. P. 71A(a). Since Rule 71A is silentwith

respect to preliminary injunctive relief, Rule 65 applies. See Sage, 361 F.3d at 822-24.
Importantly, the Constitution does not prevent a condemnor from taking possession of
property beforejust compensation is determined and paid. Id. at 824.
A decision to grant a preliminary injunction is within the sound discretion of the

district court, Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011)
(citing WVAss 'n ofClub Owners &Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292,
298 (4th Cir. 2009)), especially "factual inquiries," which are entitled to "substantial

deference," Metro. Reg'llnfo. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d

591, n.7 (4th Cir. 2013). In conducting the analysis, the court must bear in mind that "[a]

preliminary injunction is 'an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief" Id. (quoting Winter v. Natural
Res. Def Council, Inc., 555 U.S. 7, 22 (2008)). To prevail, the moving party must

illustrate that (1) they are likely to succeed onthe merits, (2) they are likely to suffer

irreparable harm, (3) the balance of hardships tips in their favor, and (4) the injunction is

in the public interest. Metro. Reg'I, 722 F.3d at 595 (citing Winter, 555 U.S. at 20). All
four factors must be satisfied. See The Real Truth About Obama, Inc. v. Fed. Elec.

Comm'n, 575 F.3d 342, 351 (4th Cir. 2009) (citing Winter, 555 U.S. at 19-20).
III. ANALYSIS

While the precise issues presented here, specifically establishing the right of
condemnation pursuant to the NGA and granting the right of immediate possession, are
of first impression in the Eastern District of Virginia, a number of decisions in the
Western District of Virginia have considered these issues. See Columbia Gas

Transmission Corp. v. An Easement to Construct, Operate, & Maintain a 24-inch Gas

Transmission Pipeline Across Properties in Greene Cnty., 2007 WL 2220530 (W.D. Va.

July 31, 2007); East Tenn. Natural Gas, LLC v. 3.62 Acres in Tazewell County, 2006 WL
1453937 (W.D. Va. May 18, 2006); Columbia Gas Transmission Corp. v. An Easement
to Construct, Operate &Maintain a 24-Inch Pipeline Across Properties in Shenandoah

Cnty., Va., 2008 WL 2439889 (W.D. Va. June 9, 2008). This Court finds their reasoning
persuasive.

A. Summary Judgment

The Act grants the holder of a certificate of public convenience and necessity the
authority to acquire property by the exercise of the right of eminent domain for "the

necessary right-of-way to construct, operate, and maintain a pipe line ... for the

transportation of natural gas, and the necessary land or otherproperty, 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" when it "cannot acquire

by contract, or is unable to agree with the owner ofproperty to the compensation to be
paid." 15 U.S.C. § 717f(h). In other words, to condemn the property Transco must
illustrate the following: (1) it is a holder ofa certificate ofpublic convenience and

necessity; (2) the property to be condemned is necessary for the construction, operation,
and maintenance ofthe pipelines at issue; and (3) it has been unable to acquire the
necessary property interest from the owner. See id. Additionally, Transco is required to

detail the property by inclusion ofa "description ofthe [condemned] property sufficient
for its identification." Fed. R .Civ. P. 71(A)(c)(2); Columbia Gas, 2008 WL 2439889, at
*2.

Here, it is undisputed that Transco holds the Certificate issued by the FERC to

build the Project. Additionally, the FERC Certificate, produced after an almost yearlong
review of the matter, establishes that the property condemned in this matter is necessary
for the construction, operation, and maintenance of the pipeline at issue. Moreover, Ms.

Watkins herself admits in her response to the Preliminary Motions that theparties in this
have been unable to agree as to just compensation. Lastly, the land as described in

Transco's pleadings leaves little doubt as to the specific property being condemned in

this action. Accordingly, Transco has satisfied the statutory prerequisites to establish its
substantive right of condemnation through this Court.

As there is no genuine issue of material fact and Transco is entitled tojudgment as
a matter of law, its motion for partial summary judgment will be will be granted.

B. Preliminary Injunction

Transco seeks a preliminary injunction to gain immediate possession ofthe land so
that it may begin construction related activities by September 2, 2014.

The Fourth Circuit has held that once a district court determines that a gas

company has the substantive right to condemn property under the Act, the court may
exercise its equitable power to grant the remedy ofimmediate possession through the
issuance of a preliminary injunction. See Sage, 361 F.3d at 828. To prevail on a Rule

65(a) motion for preliminary injunction, the moving party must demonstrate that (1) they
are likely to succeed on the merits, (2) they are likely to suffer irreparable harm, (3) the
balance of hardships tips in their favor, and (4) the injunction is in the public interest.
Metro. Reg'l, 722 F.3d at 595 (citing Winter, 555 U.S. at 20). All four factors must be
satisfied. The Real Truth About Obama, 575 F.3d at 351.
/.

Likelihood ofSuccess on the Merits

Transco's satisfaction of the statutory prerequisites to establish its substantive

right of condemnation through this Court illustrates that it will likely to succeed on the
merits.

ii.

Irreparable Harm

Pursuant to the FERC Certificate, Transco's approval for the Project was

conditioned upon them completing construction ofthe proposed facilities and making
them available for service within two years of the November 2013 order.

Transcontinental Gas, 2013 WL 6137661, at *18. Transco's ability to meet the in-

service deadline of September 1, 2015 will be difficult if its motion is not granted. (PI.
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Br. Supp. Mot. for Prelim. Inj., Ex. Athereto, Declaration ofAmit J. Patel ("Patel

Decl."), at fl 14-16, 35^3.) Even more, should Ms. Watkins' principal argument that
Transco has not at this early stage provided just compensation for the easement preclude
an immediate taking, Transco will almost certainly miss the Project's in-service deadline.

(Id. at K43.) Mindful ofthe necessity for an extensive evidentiary hearing to determine
just compensation, this Court reserved this issue for separate consideration. No other
defendant has objected to this bifurcated procedure.

Such delay would be catastrophic to Transco's business, considering customer's
needs for its products as well as its contractual commitment with DVP's affiliate and

Piedmont Natural Gas Company, Inc. (Patel Decl. atfl 44^15.) Simply, Transco cannot
guarantee it will meet the deadline required by the FERC Certificate if it is not granted
the right to immediately possess the land. Transco has, therefore, established that it will

suffer irreparable harm if this Court denies it the right of immediate possession.
Hi.

Balance ofthe Hardships

Ms. Watkins' principal arguments against Transco taking immediate possession is
that shehas not received immediate compensation and such possession will hinder her
ability to sell the land. As noted earlier, delaying the possession of the land until the
Courtcan determine just compensation is not a tenable solution. Moreover, immediate

compensation is not affected by the decision to issue a preliminary injunction.

The Defendant's argument as to her ability to sell the land is equally unpersuasive.
Indeed, this argument presents an attempt to re-litigate the issue of public convenience

and necessity as determined by FERC. The Commission conducted an almost yearlong
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review that considered arguments for and against the Project from all interested

landowners and public interest organizations. Transcontinental Gas, 2013 WL 6137661,
at **9-18. Moreover, the Court's role in cases concerning the Natural Gas Act is not to

revisit whether the easements granted to Transco are in the public interest. Columbia Gas

Transmission Corp, 2007 WL 2220530, at *4. To the contrary, this Court is simply to
determine whether the recipient of the FERC certificate is in compliance with its terms.
See Columbia Gas, 2008 WL 2439889, at *2 ("[T]he role of the district court in NGA

eminent domain cases extends solely to examining the scope of the certificate and
ordering the condemnation of property as authorized in that certificate.") (citations
omitted). In other words, Ms. Watkins only legitimate concern is that ofjust

compensation which will appropriately be determined in a later hearing. Accordingly, the
hardship faced by Transco vastly outweighs those of Ms. Watkins in this matter.
iv.

Public Interest

FERC made the determination that "[b]ased on the benefits the project will

provide and the minimal adverse effect on shippers, other pipelines and their captive
customers, and landowners and surrounding communities...public convenience and

necessity requires approval of Transco's proposal, as conditioned in th[e] order."

Transcontinental Gas, 2013 WL 6137661, at *4. FERC's findings after a yearlong
review of the matter that considered arguments for and against the project are entitled to
substantial weight.

As explained earlier, this Court's role as to the FERC Certificate is to ensure that

Transco has not exceeded its scope, not re-litigate whether the approved Project is indeed
12

in the public interest. The evidence before the Court, however, indicates significant
public interest in the timely construction of this Project. Specifically, the timely
completion of the project will streamline the supply of natural gas and avoid increased
electric power costs to consumers throughout the region. Indeed, DVP estimates that if

Transco's project is not timely completed its customers will be negatively affected by
upwards of two hundred million dollars. (PI. Br. Supp. Mot. for Prelim. Inj., Ex. A
thereto, Declaration of Glenn A. Kelly, at K9.) Not to mention the economic benefit to

scores of citizens who will be hired to work on the Project. (Patel Decl. at H50.)
Accordingly, Transco's motion for a preliminary injunction for early access to and

possession of the easements at issue is hereby GRANTED until the completion of this
case in accordance with Plaintiffs filings.
IV. CONCLUSION

For the foregoing reasons, Plaintiffs motion for partial summary judgment
regarding its right to condemn the properties at issue and for a preliminary injunction for
early access to and possession of the easements at issue until the completion of this case
is hereby GRANTED.

An appropriate Order will accompany this Memorandum Opinion.

J^T

/s/

Henry E. Hudson
nciuy ii. rruuauii

£2

Date:Q*pr. g^P/V

United States District Judge

Richmond, VA

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