Transcontinental Gas Pipe Line Company, LLC v. Temporary easements totaling 0.119 acres, more or less, over a parcel of land in Brunswick County, Virginia of approximately 12.00 acres in size, as more particularly described herein et al

Filing 46

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

TRANSCONTINENTAL GAS PIPE LINE
COMPANY, LLC,

Plaintiff,
Civil Action No.: 3:14-cv-00409-HEH

Temporary easement totaling 0.119 acres,
more or less, over a parcel of land in
Brunswick County, Virginia of
approximately 12.00 acres in size, as more
particularly described herein,
etal,
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. 16) and the Omnibus Motion for Preliminary Injunction for Possession by
September 2, 2014 (ECF No. 18) (collectively, "Preliminary Motions") filed by the
Plaintiff, Transcontinental Gas Pipe Line Company, LLC ("Plaintiff' or "Transco"). This

Court by Order (ECF No. 43) entered August 25, 2014 provided Constance Watkins

("Defendant" or "Ms. Watkins") additional time to respond, as she proceeded in this
matter as apro se litigant andwas the sole defendant to provide a response to Plaintiffs
Complaint. The Defendant's response (ECF No. 45) was filed on August 27, 2014.
Accordingly, the matter is now ripe for disposition.

To be clear, the only issue before the Court is right of entry onto and possession of
the land for the installation of the Project. 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 a Temporary Access Road
easement over the property as outlined in the survey plat. (Compl., ECF No. 1, Ex. B
thereto.)
I. BACKGROUND

Transco is a natural gas pipeline company subject to regulation by the Federal
Energy Regulatory Commission under the Natural Gas Act ("the Act" or "NGA"),

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. 1|61,152, 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 ^
14.) The Project will allow Transco 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 the Amended
Complaint (ECF No. 28) on June 17, 2014—and the Notices of Condemnation (ECF Nos.

3-14, 22, 24-25, 29-32) on June 6, June 11, June 12, and June 17, seeking to condemn a
temporary access road easement over real property in which defendant has an interest,
which is a parcel of land located in Brunswick County, Virginia, described, in part, as
follows:

All that certain tract or parcel of land situate in Powellton
Magisterial District, Brunswick County, Virginia, containing
twelve (12) acres, more or less, and bounded as follows: on
the North and East by the land of said Alfred James, on the
South by David Travis, on the West by Cold Water Creek,
said parcel or tract beginning on line between said Alfred
James and David Travis at a dogwood bush and running
North to oak bush on a fence, thence down said fence West to
Cold Water Creek, at said Creek to line between Alfred James

and David Travis, thence East on said line to starting point.
Being the same real estate conveyed to Alfred T. James by
Deed from Alfred James dated June 26, 1895 and recorded

January 28, 1895 in the Clerk's Office of the Circuit Court of
Brunswick County, Virginia in Deed Book 47, page 718.
Alfred T. James, died intestate in 1942, survived by his wife,
Mattie E. James, and eight children, namely: Susie P. James,
Helen James Roscoe, Lacey James, John R. James, Louise
James Wiggins, Fred T. James, Sidney A. James and Vivian
J. Spence, and by Willie James White, sole surviving issue of

Mabel James White, a daughter of Alfred T. James, who
predeceased her father. Mattie E. James died intestate on
January 23, 1957, survived by her eight children as set out on
the List of Heirs recorded in the aforesaid Clerk's Office in

Will Book 26, Page 286.

(Compl. at | 3 (citing Land Records of Brunswick County)
("the Property")).

Pursuant to the FERC Certificate, the Temporary Access Road easement that

Transco seeks to condemn in this action is shown and described on the survey plat and
legal description prepared by a Virginia Certified Land Surveyor. (Compl., Ex. B thereto;

Transcontinental Gas, 2013 WL 6137661, at *20.) More specifically, the Temporary
Access Road Easement is shown and described in the Survey Plat as "Area of Proposed
Access Road AR-SVLB-89.6 from County Road 679/Travis Drive" and comprises 0.119
acres of land. Id. The Temporary Access Road Easement will be used to provide
Transco, its agents and its contractors ingress and egress to and from a public road

adjacent to the Property for use during work on the Project. (Compl. at 1 33.) Transco
was unable to negotiate the terms of the Easement with Defendant, therefore Transco

properly filed its Complaint in this Court for condemnation of the Easements pursuant to
15 U.S.C. § 717f(h). (PL Br. Supp. Mot. for Summ. J„ Ex. B thereto, Declaration of

Timothy Chastain, atfl 8-9.)

Ms. Watkins argues in her response to Plaintiffs motion for injunctive relief (ECF
No. 45) that she is asserting the rights of others served by Transco as well, contending
that they did not actually receive notice.

As reflected in the Affidavits of Service (ECF Nos. 35-38, 40) filed by Transco's
counsel of record, all of the known individual defendants with known addresses at the

time of filing the Complaintwere validly served with the Complaint and Notices of

Condemnation between June 19 and July 21, 2014. As Transco was unable to identify all
persons who may have an interest in the Property and was unable to locate a valid address

for some of those persons it did identify as having an interest, despite a diligent search of

the public records, Transco validly served any defendants with unknown addresses, along
with any unknown heirs, beneficiaries, or owners of the Property by publication on July
2, 2014, pursuant to Fed. R. Civ. P. 71.1(d)(3)(B)(ii), as reflected in the Certificate of

Service by Publication (ECF No. 34) filed by Transco's counsel of record. One
defendant, Donald L. Washington ("Mr. Washington"), did not have a known address at

the time of filing the Complaint and, as such, was validly served by publication on July 2,
2014 (ECF No. 34); his address, however, later became known to Transco, and Transco

personally served Mr. Washington at this newly discovered address on July 29, 2014
(ECF No. 40).

Under Fed. R. Civ. P. 71.1(e)(2), the defendants had until 21 days after service
(August 19, 2014 being the latest reply date among all of the defendants) to file an

Answer in this action. Only Ms. Watkins filed any response within that time.
Accordingly, under Fed. R. Civ. P. 71.1(e)(3), all of the defendants in this action, with
the exception of Ms. Watkins, have waived all objections and defenses to Transco's
condemnation of the easement at issue.

On June 6, 2014, Transco filed its Motion for Partial Summary Judgment and
supporting brief (ECF No. 17), requesting the Court to establish Transco's substantive

right to condemn the easement at issue pursuant to the Natural Gas Act. The same day,
Transco also filed its Preliminary Injunction Motion and supporting brief (ECF No. 19)

seeking a preliminary injunction order authorizing Transco to enter upon and use the
requested easement by September 2, 2014.
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 anypro 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 in the 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 Custerv. 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 be treated 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 on August 27, 2014 to
be a properresponse to the Preliminary Motions, it fails to present a persuasive basis to
deny the requested Temporary Access Road Easement.
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 to judgment 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, 247^18 (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. See Bryant v. BellAtl. Md., Inc., 288F.3dl24, 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 of immediate possession through the

issuance of a 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). Because Rule 71A is silent

with 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 before just compensation is determined and paid. Id. at 824.
A decision to grant a preliminary injunction is within the sound discretion of the

district court, Dewhurstv. CenturyAluminum 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'I Info. 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 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, 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

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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 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" when it "cannot acquire
by contract, or is unable to agree with the owner of property 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 of a certificate of public convenience and

necessity; (2) the property to be condemned is necessary for the construction, operation,
and maintenance of the 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 of a "description of the [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 the parties in this
case 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 to judgment 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 of the 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 of immediate 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.

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Metro. Reg'I, 722 F.3d at 595 (citing Winter, 555 U.S. at 20). All four factors must be
satisfied. 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.

//.

Irreparable Harm

Pursuant to the FERC Certificate, Transco's approval for the Project was
conditioned upon them completing construction of the 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.
Br. Supp. Mot. for Prelim. Inj., Ex. A thereto, Declaration of Amit J. Patel ("Patel
Deck"), at fl 14-16, 35-43.) 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 of the 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. at fl 44-45.) Simply, Transco cannot

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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 she has 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
Court can 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 appears to present an attempt to re-litigate the issue of public
convenience and necessity as determined by FERC. The Commission conducted an

almost yearlong 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 required 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

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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

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 ^| 9.) Not to mention the economic benefit to
scores of citizens who will be hired to work on the Project. (Patel Decl. at ^ 50.)
Accordingly, Transco's motion for a preliminary injunction for early access to and

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possession of the easement 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 easement at issue until the completion of this case is
hereby GRANTED.

An appropriate Order will accompany this Memorandum Opinion.

%K
0
Date: o«-pt 3L 20lf

Is!

Henry E. Hudson
United States District Judge

Richmond, VA

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