Columbia Gas Transmission, LLC v. 84.53 acres of land, more or less, in Calhoun, Marshall, Ritchie, Tyler and Wetzel Counties West Virginia et al

Filing 1567

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. #1559 : The Court GRANTS Columbias unopposed motion for summary judgment (Dkt. No. #1559 ); and DIRECTS Columbia to pay $20.72 to Eggleston, $6.22 to Curtis, and $13.86 to Clinton, plus prejudgment intereston these amounts at 2.15% per annum. It is so ORDERED. The Court DIRECTS the Clerk to transmit copies of this Order to counsel of record and enter a separate judgment order in favor of Columbia. Signed by Senior Judge Irene M. Keeley on 10/7/19. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COLUMBIA GAS TRANSMISSION, LLC,
Plaintiff,
v.

CIVIL ACTION NO. 1:18CV9
(Judge Keeley)

84.53 ACRES OF LAND, MORE OR LESS, IN
CALHOUN, MARSHALL, RITCHIE, TYLER, AND
WETZEL COUNTIES, WEST VIRGINIA, ET AL.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
In

this

Transmission,
access

to

and

condemnation
LLC

case,

(“Columbia”),

possession

of

the

plaintiff,

previously

certain

Columbia

obtained

temporary

and

Gas

immediate
permanent

easements it sought to condemn to construct a natural gas pipeline
(Dkt. No. 308). Now, Columbia moves for summary judgment on the
amount of just compensation due for the portions of this property
owned

by

the

remaining

defendants,

Sandra

Mays

Eggleston

(“Eggleston”), Mary Curtis (“Curtis”), and Gary David Clinton
(“Clinton”) (collectively, “the remaining defendants”) (Dkt. No.
1559). For the reasons that follow, the Court GRANTS the unopposed
motion (Dkt. No. 1559).
I. BACKGROUND1
On December 29, 2017, FERC granted a Certificate of Public

1

As it must, the Court recites the facts in the light most
favorable to the non-moving parties. See Providence Square Assocs.,
L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000).

COMUMBIA V. 84.52 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
Convenience and Necessity to Columbia authorizing construction of
170.9

miles

of

natural

gas

pipeline

in

West

Virginia

(“the

Project”) (Dkt. No. 1-1 at 2).2 The Project also includes the
construction or modification of several compressor stations, a
regulating station, and tie-in sites. Id. at 3-5. The Certificate
is subject to various environmental conditions, including those
that must be fulfilled before and during construction of Columbia’s
pipeline. Id. at app. C.
Columbia had to obtain easements along the Project in order to
construct its pipeline, and under the appropriate circumstances the
NGA grants it the authority to do so by eminent domain. On January
12, 2018, Columbia sought to exercise that authority over certain
property located in the Northern District of West Virginia, which
it was unable to acquire by agreement, by filing a complaint
pursuant to the NGA and Fed. R. Civ. P. 71.1 (Dkt. No. 1). As
required by Rule 71.1(c)(2), Columbia included descriptions of the
property, as well as the interests to be taken (Dkt. Nos. 1 at 4468; 1-2).
On January 16, 2018, Columbia moved for partial summary
judgment on its right to condemn the subject property, as well as

2

Citations to the FERC Certificate reference pagination of the
FERC Certificate itself rather than CM/ECF pagination.
2

COMUMBIA V. 84.52 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
a preliminary injunction allowing it to immediately possess the
property (Dkt. No. 6). On February 16, 2018, the Court conducted an
evidentiary hearing, and on February 21, 2018, the Court granted
Columbia’s motion for order of condemnation and for preliminary
injunction, authorizing Columbia to condemn and obtain immediate
access to and possession of the subject property (Dkt. No. 308).
On June 10, 2019, Columbia moved for summary judgment on just
compensation owed to the remaining defendants (Dkt. Nos. 1559,
1560). Despite being served a Roseboro Notice (Dkt. Nos. 1565,
1566), the remaining defendants have not responded to Columbia’s
motion. Accordingly, Columbia’s motion is ripe for disposition.3
II. STANDARD OF REVIEW
Summary

judgment

is

appropriate

only

“if

the

pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled

3

Although Columbia’s motion for summary judgment is unopposed, the
Court is nevertheless required to thoroughly analyze the motion.
Robinson v. Wix Filtration Corp., 599 F.3d 403, 409 n.8 (4th Cir.
2010) (“[I]n considering a motion for summary judgment, the
district court ‘must review the motion, even if unopposed, and
determine from what it has before it whether the moving party is
entitled to summary judgment as a matter of law.’” (emphasis in
original) (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410,
416 (4th Cir. 1993))).
3

COLUMBIA V. 84.53 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When ruling
on a motion for summary judgment, the Court reviews all the
evidence “in the light most favorable” to the nonmoving party.
Providence Square, 211 F.3d at 850. The Court must avoid weighing
the evidence or determining its truth and limit its inquiry solely
to a determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

and

of

establishing

the

nonexistence of genuine issues of fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.” Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment; the
evidence

must

be

such

that

a

rational

trier

of

fact

could

reasonably find for the nonmoving party. Id. at 248–52.
III. DISCUSSION
The question at issue is the amount of just compensation due
to the remaining defendants for their interests in the outstanding
tracts, Tract Nos. 4 (WV-MA-0165.000) and 20 (WV-TY-0008.000) (Dkt.
4

COLUMBIA V. 84.53 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
No. 1560 at 1-6). Eggleston owns a 0.9259% interest in Tract No. 4,
Curtis owns a 0.2778% interest in Tract No. 4, and Clinton owns a
0.9259% interest in Tract No. 20. Id. at 5-6.
“‘Just compensation’ is that amount of money necessary to put
a landowner in as good a pecuniary position, but no better, as if
his property had not been taken.” United States v. 69.1 Acres of
Land, More or Less, Situated in Platt Springs Twp., Cty. of
Lexington, State of S.C., 942 F.2d 290, 292 (4th Cir. 1991). “[I]t
is well settled that in the event of a ‘partial taking’ – i.e., a
case in which the [condemnor] has taken one part of a larger tract,
leaving the remainder to the landowner – the measure of just
compensation is the difference between the fair and reasonable
market value of the land immediately before the taking and the fair
and reasonable market value of the portion that remains after the
taking.” United States v. Banisadr Bldg. Joint Venture, 65 F.3d
374, 378 (4th Cir. 1995). When a taking is temporary in nature,
because it involves a temporary work space, “the value of the
taking is what rental the marketplace would have yielded for the
property taken.” Banisadr Bldg. Joint Venture, 65 F.3d at 378.
Generally, “the property owners bear the burden of proving the
fair market value at trial.” Hardy Storage Co., LLC v. Prop.
Interests

Necessary

to

Conduct
5

Gas

Storage

Operations,

No.

COLUMBIA V. 84.53 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
2:07-cv-5, 2009 WL 689054, at *3 (N.D. W. Va. Mar. 9, 2009) (citing
United States ex rel. and for Use of Tenn. Valley Auth. v.
Powelson, 319 U.S. 273–74 (1943)). However,
[i]f the condemnor is the only party to admit
evidence to the Court of the value of the real
property taken, the Court may use that
evidence to determine the just compensation of
the property and enter default judgment
against defendant landowners and award the
defendants
their
just
compensation
as
determined by the condemnor.
Atl. Coast Pipeline, LLC v. 1.52 Acres, No. 3:17-cv-814, 2019 WL
148402, at *7 (E.D. Va. Jan. 9, 2019). So too here. Because the
remaining defendants have not appeared, answered, or otherwise
defended this case, the Court may consider Columbia’s undisputed
evidence in order to determine just compensation. Id.
A.

Tract No. 4 (WV-MA-0165.000)
According to Columbia’s expert and certified appraiser, Corey

Sell (“Sell”), Tract No. 4 is comprised of 53.85 total acres of
vacant land (Dkt. No. 1560-3 at 2). This tract is encumbered by a
50-foot-wide permanent pipeline easement totaling 1.91 acres, a
temporary

workspace

easement

totaling

2.82

acres,

and

two

additional temporary workspace easements totaling 0.19 acres. Id.
As of the date of the taking, January 12, 2018, Sell determined
that the permanent pipeline easement diminished the value of Tract
6

COLUMBIA V. 84.53 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
No. 4 by $1,576.00, and the total rental value of the temporary
easements was $662.00, for a total of $2,238.00. Id. at 3. Because
Eggleston owns only a 0.9259% interest in Tract No. 4, she is
entitled to 0.9259% of $2,238.00, or $20.72 (0.009259 X $2,238.00
= $20.72). Similarly, because Curtis owns only a 0.2778% interest
in Tract No. 4 she is entitled to 0.2778% of $2,238.00, or $6.22
(0.002778 X $2,238.00 = $6.22).
B.

Tract No. 20 (WV-TY-0008.000)
According to Sell, Tract No. 20 is comprised of 93.00 total

acres of vacant land (Dkt. No. 1560-3 at 3). This tract is
encumbered by a 50-foot-wide permanent pipeline easement totaling
1.43 acres, a temporary workspace easement totaling 2.06 acres, and
two additional temporary workspace easements totaling 0.06 acres.
Id. As of the date of the taking, January 12, 2018, Sell determined
that the permanent pipeline easement diminished the value of Tract
No. 20 by $1,073.00, and the total rental value of the temporary
easements was $424.00, for a total of $1,497.00. Id. at 3-4.
Because Clinton owns only a 0.9259% interest in Tract No. 20, he is
entitled to 0.9259% of $1,497.00, or $13.86 (0.009259 X $1,497.00
= $13.86).
C.

Prejudgment Interest
The remaining defendants are also entitled to prejudgment
7

COLUMBIA V. 84.53 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
interest on the amount of just compensation from the date of the
taking, January 12, 2018, to the date of the judgment, October 7,
2019. See United States v. Eltzroth, 124 F.3d 632, 638 (4th Cir.
1997) (“The date of taking ‘fixes the date as of which the land is
to be valued and the Government’s obligation to pay interest
accrues.’” (quoting United States v. Dow, 357 U.S. 17, 22 (1958))).
No federal law, however, establishes the appropriate procedure
for determining what interest rate applies. Rather, it is left to
the Court’s discretion. See Washington Metro. Area Transit Auth. v.
One Parcel of Land in Montgomery Co., Md., 706 F.2d 1312, 1322 (4th
Cir. 1983) (“The choice of an appropriate rate of interest is a
question of fact, to be determined by the district court . . . .”).
This Court has previously observed that, “in order to make the
injured parties whole, the prejudgment interest should reflect the
injured party’s borrowing costs.” Dijkstra v. Carenbauer, No.
5:11-CV-152, 2015 WL 12750449, at *7 (N.D. W. Va. July 29, 2015)
(Bailey, J.) (quoting Zerkel v. Trinity Resources, Inc., 2013 WL
3187077, *2 (N.D. W. Va. June 20, 2013) (Stamp, J)).
Applying

this

principle,

the

rate

at

which

prejudgment

interest is calculated should reflect the rate that best represents
the remaining defendants’ borrowing cost during the period of the
loss

of

use

of

the

moneys

owed.
8

In

order

to

make

this

COLUMBIA V. 84.53 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
determination, the Court will apply the average federal interest
rate from January 2018. During that time, the federal interest
rates

for

marketable

TreasuryDirect.gov,

interest-bearing

Average

Interest

debt
Rates,

averaged
January

2.15%.
2018

https://www.treasurydirect.gov/govt/rates/pd/avg/2018/2018_01.htm
(last visited Oct. 3, 2019). Accordingly, the Court will award
prejudgment interest on the amount of just compensation, from
January 12, 2018, to October 7, 2019, to be calculated at the rate
of 2.15% per annum.
IV. CONCLUSION
For the reasons discussed, finding no disputed material fact
as to the amount of just compensation owed to the remaining
defendants, the Court:
•

GRANTS Columbia’s unopposed motion for summary judgment
(Dkt. No. 1559); and

•

DIRECTS Columbia to pay $20.72 to Eggleston, $6.22 to
Curtis, and $13.86 to Clinton, plus prejudgment interest
on these amounts at 2.15% per annum.

It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and enter a separate judgment order in favor
of Columbia. It further DIRECTS Columbia to provide copies of both
9

COLUMBIA V. 84.53 ACRES, ET AL.

1:18CV9

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
UNOPPOSED MOTION FOR SUMMARY JUDGMENT [DKT. NO. 1559]
Orders to the pro se defendants and file proof of service with the
Court.
DATED: October 7, 2019.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

10