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
308
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ORDER OF CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]: The Court GRANTS the Antero defendants Notice of Withdrawal of Response Dkt. No. #134 ; GRANTS Columbias Motion for an Order of Condemnation and for Preliminary Injunction Dkt. No. #6 ; DENIES AS MOOT Columbias Motion for an Expedited Hearing Dkt. No. #9 ; and DIRECTS Columbia to deposit funds and a surety bond prior to accessing and taking possession of the properties as set forth above. Signed by Senior Judge Irene M. Keeley on 2/21/18. (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 MOTION FOR ORDER OF
CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
The plaintiff, Columbia Gas Transmission, LLC (“Columbia”),
seeks
to
condemn
certain
temporary
and
permanent
easements
necessary for the construction and operation of a natural-gas
pipeline
that
runs
through
West
Virginia.
To
facilitate
the
expeditious completion of its project, Columbia seeks partial
summary judgment regarding its right to condemn the easements, and
a preliminary injunction allowing it to access and possess the
property
prior
to
paying
just
compensation.
After
carefully
considering the record, and the evidence adduced at a hearing on
February 16, 2018, for the following reasons, the Court GRANTS
Columbia’s Motion for an Order of Condemnation and for Preliminary
Injunction.
I. LEGAL FRAMEWORK
This proceeding is governed by the Natural Gas Act (“NGA” or
“the Act”), which provides private natural-gas companies the power
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
to acquire property by eminent domain. 15 U.S.C. § 717 et seq.
Under the Act, a “natural-gas company” is “a person engaged in the
transportation of natural gas in interstate commerce, or the sale
in interstate commerce of such gas for resale.” Id. § 717a(6). Such
companies may build and operate new pipelines only after obtaining
a certificate of public convenience and necessity (“Certificate”)
from the Federal Energy Regulatory Commission (“FERC” or “the
Commission”). As the Fourth Circuit has summarized:
The procedure for obtaining a certificate from FERC is
set forth in the NGA, and its implementing regulations.
The process begins with an application from the gas
company that includes, among other information, (1) a
description of the proposed pipeline project, (2) a
statement of the facts showing why the project is
required, and (3) the estimated beginning and completion
date for the project. Notice of the application is filed
in the Federal Register, public comment and protest is
allowed, and FERC conducts a public hearing on the
application. As part of its evaluation, FERC must also
investigate the environmental consequences of the
proposed project and issue an environmental impact
statement. At the end of the process FERC issues a
certificate if it finds that the proposed project “is or
will be required by the present or future public
convenience and necessity.” In its order issuing a
certificate, FERC specifies a date for the completion of
construction and the start of service. The certificate
may include any terms and conditions that FERC deems
“required by the public convenience and necessity.”
E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 818 (4th Cir. 2004)
(internal citation omitted).
2
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“Once FERC has issued a certificate, the NGA empowers the
certificate holder to exercise ‘the right of eminent domain’ over
any
lands
needed
for
the
project.”
Id.
(citing
15
U.S.C.
§ 717f(h)). The authority by which natural-gas companies may
exercise the right is set forth fully in the Act:
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). Notably, the “state procedure requirement has
been superseded” by the implementation of Fed. R. Civ. P. 71.1,
which provides the applicable procedure in most condemnation cases.
See Sage, 361 F.3d at 822.
3
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There are, therefore, three essential prerequisites that must
be met prior to exercising the power of eminent domain under the
NGA. The natural-gas company must only establish that “(a) It is a
holder of a certificate of public convenience and necessity; (b) It
needs to acquire an easement, right-of-way, land or other property
necessary to the operation of its pipeline system; and (c) It has
been unable to acquire the necessary property interest from the
owner.” Rover Pipeline LLC v. Rover Tract No(s) WV-DO-SHB-011.510ROW-T & WV-DO-SHB-013.000-ROW-T, No. 1:17cv18, 2017 WL 5589163, at
*2 (N.D.W.Va. Mar. 7, 2017).
Further, the law in the Fourth Circuit is clear that, “once a
district court determines that a gas company has the substantive
right to condemn property under the NGA, the court may exercise
equitable power to grant the remedy of immediate possession through
the issuance of a preliminary injunction.” Sage, 361 F.3d at 828.
A preliminary injunction is proper when the plaintiff can “[1]
establish that he is likely to succeed on the merits, [2] that he
is likely to suffer irreparable harm in the absence of preliminary
relief, [3] that the balance of equities tips in his favor, and [4]
4
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that an injunction is in the public interest.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008).1
II. BACKGROUND
On December 29, 2017, FERC granted a Certificate 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 must 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
1
Because the Court refers to the facts and analysis in Sage
throughout this Opinion and Order, it bears noting that Sage
applied the preliminary injunction test from Blackwelder Furniture
Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189, 193-96 (4th Cir. 1977),
which was abrogated by the Supreme Court’s holding in Winter. Real
Truth About Obama, Inc. v. Fed. Election Com’n, 575 F.3d 342, 34647 (4th Cir. 2009), vacated on other grounds and remanded, 559 U.S.
1089 (2010), standard reaffirmed in 607 F.3d 355 (4th Cir. 2010).
Nonetheless, Sage is binding on this Court to the extent that its
analysis of each preliminary injunction factor comports with the
requirements of Winter.
2
Citations to the FERC Certificate reference pagination of
the FERC Certificate itself rather than CM/ECF pagination.
5
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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
a preliminary injunction allowing it to immediately possess the
property (Dkt. No. 6). Columbia also moved to expedite a hearing on
its motion, given that it must clear vegetation and trees from the
subject easements by March 31, 2018 (Dkt. No. 9).
Pursuant
to
Fed.
R.
Civ.
P.
71.1(e)(2),
the
following
defendants asserted defenses by answering the complaint: Wheeling
Power Company (Dkt. No. 300); David E. Bowyer (Dkt. No. 267);
Monongahela Power Company (Dkt. No. 265); Timothy L. Schiele and
Robin K. Schiele, Dallas F. Smith, Mary Lou Weekley, Roger A. Hodge
and Deanna L. Hodge, Kendall B. Hodge and Tracy J. Hodge, Carolynn
Hodge and David I. Hodge, George T. Mayes and Sherre Mayes, Doris
L. Davis, Pat L. Boone, Lisa Davis-Heller, and Norman E. Keeney,
Jr., and Nancy M. Keeney (Dkt. No. 87); Frontier West Virginia,
Inc.
(Dkt.
No.
85);
Antero
Midstream
6
LLC,
Antero
Midstream
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
Partners, LP, Antero Resources Appalachian Corporation, Antero
Resources Corporation, Antero Treatment LLC, and Antero Water LLC
(“the Antero defendants”) (Dkt. No. 75).3
On February 16, 2018, the Court conducted an evidentiary
hearing at which, despite being provided notice of the hearing, no
defendant actively participated. Columbia presented the testimony
of
Troy
Tally
TransCanada
(“Tally”),
Corporation,
a
project
which
wholly
director
owns
employed
Columbia.
by
Tally’s
testimony regarding the Project will be discussed in more detail
below.
III. MOTION FOR ORDER OF CONDEMNATION
Summary
documents,
judgment
is
electronically
appropriate
stored
where
the
information,
“depositions,
affidavits
or
declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials” establish that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a), (c)(1)(A). When ruling on a motion for
3
Although the Antero defendants initially objected that
Columbia’s complaint failed to identify any particular depth for
the Project (Dkt. Nos. 75 at 32; 76 at 2), they have since
withdrawn their objection “in light of the representations made by
Plaintiff’s counsel regarding the depth of the proposed taking”
(Dkt. No. 134).
7
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summary judgment, the Court reviews all the evidence “in the light
most favorable” to the nonmoving party. Providence Square Assocs.,
L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir. 2000). 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.
The Court may only exercise its equitable power to grant a
preliminary injunction after determining “that a gas company has
the substantive right to condemn property under the NGA.” Mid
Atlantic Express, LLC v. Baltimore Cty., Md., 410 F. App’x 653, 657
8
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
(4th Cir. 2011) (unpublished decision) (quoting Sage, 361 F.3d at
828). As discussed, to establish that it has the right to condemn,
Columbia must demonstrate only that 1) it holds a FERC Certificate,
2) it needs to acquire the easements, and 3) it has been unable to
acquire them by agreement. 15 U.S.C. § 717f(h). Columbia has
satisfied each of these elements, and is entitled to partial
summary judgment regarding its right to condemn.
First,
the
parties
cannot
dispute
that
FERC
issued
a
Certificate to Columbia on December 29, 2017 (Dkt. No. 1-2).
Second, Columbia has established that the easements are “necessary
and consistent with the easement rights that FERC authorized
[Columbia] to obtain.” Rover Pipeline LLC, No. 1:17cv18, 2017 WL
5589163, at *2. The uncontested evidence in this case demonstrates
that the easements sought “are portions of the route approved by
the
FERC
Certificate
maintenance,
operation,
as
necessary
alteration,
for
the
testing,
construction,
replacement,
and
repair of the Project,” and that “Columbia cannot construct the
Project in accordance with the FERC Certificate without acquiring
the [e]asements” (Dkt. No. 7 at 4). Indeed, Tally testified that
the easements sought in this case are the same easements identified
in alignment sheets Columbia submitted to FERC.
9
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Finally, to the extent it was able to contact the record
owners, Columbia has made offers to purchase the interests at issue
this case. Those owners either declined Columbia’s offers or failed
to respond. Id. at 5-6. “[T]he amounts claimed by the [owners]
relative to the outstanding [e]asements exceed $3,000.” Id. at 6.
The Court thus concludes that Columbia has been unable to acquire
the easements by contract or agreement. Therefore, because Columbia
has satisfied the three requirements of 15 U.S.C. § 717f(h), the
Court confirms Columbia’s right to condemn the easements described
in the complaint and GRANTS its motion for an order of condemnation
(Dkt. No. 6).
IV. MOTION FOR IMMEDIATE ACCESS AND POSSESSION
Given its authority to condemn the subject easements, Columbia
seeks a preliminary injunction permitting it to access and possess
the easements prior to paying just compensation (Dkt. No. 6). A
preliminary injunction is proper when the plaintiff can “[1]
establish that he is likely to succeed on the merits, [2] that he
is likely to suffer irreparable harm in the absence of preliminary
relief, [3] that the balance of equities tips in his favor, and [4]
that an injunction is in the public interest.” Winter, 555 U.S. at
20. “[A]ll four requirements must be satisfied,” Real Truth About
10
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Obama, Inc., 575 F.3d at 346, and “[a] preliminary injunction shall
be
granted
only
if
the
moving
party
clearly
establishes
entitlement.” Di Biase v. SPX Corp., 872 F.3d 224, 230 (4th Cir.
2017).
The Court is mindful that “[a] preliminary injunction is an
extraordinary remedy never awarded as of right.” Winter, 555 U.S.
at
24.
Moreover,
“[m]andatory
preliminary
injunctions
do
not
preserve the status quo and normally should be granted only in
those circumstances when the exigencies of the situation demand
such relief.” Sage, 361 F.3d at 828 (quoting Wetzel v. Edwards, 635
F.2d 283, 286 (4th Cir. 1980)). Having given heightened scrutiny to
Columbia’s request for a mandatory preliminary injunction in light
of the factors outlined in Winter, the Court concludes that the
exigencies warrant such relief.
A.
Columbia is likely to succeed on the merits.
For the reasons previously discussed, Columbia has satisfied
the requirements of 15 U.S.C. § 717f(h) and is authorized to
condemn the easements at issue. It has succeeded on the merits, and
thus has satisfied the first factor. See Sage, 361 F.3d at 829-30.
11
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B.
Columbia is likely to suffer irreparable harm.
Columbia must next establish that it will be irreparably
harmed in the absence of an injunction. Winter, 555 U.S. at 20. Its
harm must be likely rather than merely possible. Handsome Brook
Farm, LLC v. Humane Farm Animal Care, Inc., 700 F. App’x 251, 263
(4th Cir. 2017) (unpublished decision) (citing Winter, 555 U.S. at
22)). After carefully reviewing the record, the Court concludes
that Columbia will suffer irreparable harm.
The threshold question regarding irreparable harm is whether
Columbia’s anticipated economic losses are sufficient to warrant a
preliminary
substantial,
injunction.
in
terms
Typically,
of
money,
“[m]ere
time
and
injuries,
energy
however
necessarily
expended in the absence of [an injunction] are not enough.” Di
Biase, 872 F.3d at 230 (quoting Sampson v. Murray, 415 U.S. 61, 90
(1974)). However, this maxim is tied to “[t]he possibility that
adequate compensatory or other corrective relief will be available
at a later date.” Id. In other words, “[w]hile it is beyond dispute
that economic losses generally do not constitute irreparable harm,
this general rule rests on the assumption that economic losses are
recoverable.” N.C. Growers’ Ass’n, Inc. v. Solis, 644 F. Supp. 2d
664, 671 (M.D.N.C. 2009).
12
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A
plaintiff
may
“overcome
the
presumption”
against
a
preliminary injunction regarding wholly economic harm, Di Biase,
872 F.3d at 230 (citing Hughes Network Syss., Inc. v. InterDigital
Commc’ns
Corp.,
17
F.3d
691,
694
(4th
Cir.
1994)),
in
the
“extraordinary circumstances . . . when monetary damages are
unavailable or unquantifiable.” Handsome Brook, 700 F. App’x at 263
(citing Multi-Channel TV Cable Co. v. Charlottesville Quality Cable
Operating Co., 22 F.3d 546, 551-52 (4th Cir. 1994)). No party
contests that, if Columbia suffers financial losses as the result
of its inability to access the condemned easements, it will not be
able to recover those losses in this or any other litigation. This
weighs in favor of finding irreparable harm. See In re Transcon.
Gas Pipeline Co., LLC, 1:16cv02991, 2016 WL 8861714, at *8 (N.D.
Ga. Nov. 10, 2016).
Treating economic harm as irreparable under the facts of this
case is also consistent with the Fourth Circuit’s holding in Sage,
which considered several species of irreparable harm, including
economic repercussions:
The district court found that without a preliminary
injunction the Patriot Project would suffer “undue delay”
and that this delay would cause “significant financial
harm both to ETNG and some of its putative customers.”
This finding has ample support in the record. . . .
Constructing a ninety-four-mile pipeline is a complex
project that can only progress in phases. Certain
13
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portions of the project have to be completed before
construction can begin on other portions. Therefore, as
the district court recognized, “any single parcel has the
potential of holding up the entire project.” . . .
Furthermore, ETNG is under an order from FERC to complete
construction and have the pipeline in operation by
January 1, 2005. It would not be possible to meet FERC's
deadline without a preliminary injunction.
ETNG is also under contractual obligation to provide
natural gas to several electric generation plants and
local gas utilities by certain dates. Without a
preliminary injunction, ETNG would be forced to breach
these contracts. ETNG's inability to satisfy these
commitments would have negative impacts on its customers
and the consumers they serve. . . . ETNG estimates that
it would lose in excess of $5 million if construction
delay caused it to breach its contractual obligations to
supply gas. Finally, delay in the construction of the
pipeline would hinder economic development efforts in
several Virginia counties.
Sage, 361 F.3d at 828-29 (internal citation omitted); see also
Columbia Gas Transmission, LLC v. 1.01 Acres, More or Less, 768
F.3d 300, 316 (3d Cir. 2014) (holding that financial harm, along
with
“safety
and
potential
liability
concerns,”
constituted
irreparable harm).
The FERC Certificate requires Columbia to complete its Project
by December 29, 2020 (Dkt. No. 1-2 at 49); Columbia, however, plans
to begin construction immediately and place the pipeline in service
by November 2018 (Dkt. No. 7 at 6). Tally testified that, during
the course of Columbia’s effort to obtain FERC approval, it entered
into
precedent
agreements
with
14
various
shippers
in
order
to
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demonstrate the need for the Project. FERC issued the final
environmental impact statement (“EIS”) regarding the Project on
July 28, 2017, and granted the Certificate on December 29, 2017
(Dkt. No. 1-2 at 1, 26).
According to Columbia, it “must commence active construction
activities as soon as practicable in order to meet its FERCapproved in-service date of November 2018" (Dkt. No. 7 at 6). When
Columbia commences construction, the Project will proceed in the
“linear” fashion standard in the industry. After preparing the
surface of the easements, Columbia’s contractors will excavate and
install pipeline along the Project’s route. Id. at 6-7. According
to Tally, if Columbia is forced to break from this method of
construction,
it
will
be
forced
to
pay
its
contractors
an
additional $700,000 each time they are required to “work around” a
tract. Columbia’s construction schedule hinges on the fact that
certain tree clearing must be complete by March 31, 2018, in order
to comply with regulations of the United States Fish and Wildlife
Service that protect the habitat of bats and migratory birds. Id.
at 8.
If Columbia does not complete the necessary tree clearing by
that time, it will be unable to do so until at least October 15,
2018. Id. at 9. Columbia claims that delaying the entire Project
15
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until that time will result in the loss of $37.5 million per month
in delayed revenue under the precedent agreements, and would
deprive its customers - and consequently end users - of additional
volume during the crucial winter months. The inability “to meet its
contractual commitments to its customers would irreparably harm
Columbia’s
business
reputation
Columbia’s
negotiations
with
and
goodwill,”
prospective
and
may
affect
shippers
for
future
projects. In addition, being forced to construct the pipeline
during the winter months would increase costs and raise concerns
regarding site accessibility and safety. Id. at 9-10.
Of course, an injunction is usually inappropriate where the
movant fails to show “that [it] availed [itself] of opportunities
to avoid the injuries of which [it] now complain[s],” Di Biase, 872
F.3d at 235, and courts have declined to consider harms that are
self-inflicted. See, e.g., Salt Lake Tribune Publ’g Co., LLC v.
AT&T Corp., 320 F.3d 1081, 1106 (10th Cir. 2003); Davis v. Mineta,
302 F.3d 1104, 1116 (10th Cir. 2002) (“As we have previously
concluded, the state entities involved in this case have ‘jumped
the gun’ on the environmental issues by entering into contractual
obligations that anticipated a pro forma result.”); Livonia Props.
Holdings, LLC v. 12840-12976 Farmington Road Holdings, 399 F. App’x
16
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97, 104 (6th Cir. 2010) (“[S]elf-inflicted harm is not the type
that injunctions are meant to prevent.”).
As have other courts, this Court recognizes that a FERCgoverned, natural-gas company’s “self-inflicted” contracts and
deadlines are not driven solely by its desire to place the pipeline
into service as quickly as possible. See Transcon., 1:16cv02991,
2016 WL 8861714, at *9. That the FERC deadline is not yet looming,
however, does not negate the reality that the Project is and always
has been time sensitive. See, e.g., Sage, 361 F.3d at 830 (“ETNG
could not meet FERC’s deadline without immediate possession.”);
Columbia Gas, No. 2:17cv70, 2017 WL 383214, at *7 (S.D. Ohio Mar.
3,
2017)
(acknowledging
that
the
prospect
of
missing
FERC’s
deadline is irreparable harm). The process by which natural-gas
companies obtain approval and construct under the NGA necessitates
forethought and a degree of speculation.
According to Tally, Columbia entered shipping contracts to
demonstrate to FERC that there was a market demand for its Project,
and it made the business decision to secure and mobilize its
contractors
in
advance
of
receiving
FERC
approval.
Even
an
aggressive bidding process for such contractors typically lasts
between five and six months, and the contractors must have time to
plan and acquire materials prior to receiving FERC approval.
17
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
Moreover, the market for major pipeline project contractors is
small and comprised of specialized laborers that Columbia had to
ensure were available to work on its Project. Undoubtedly, Columbia
decided to accept the risk that FERC would not approve its Project,
but FERC did approve the Project and Columbia is appropriately
prepared for construction.
In addition, other practical considerations underscore the
wisdom of Columbia’s decision to prepare for construction. Given
the likelihood of trials on just compensation, this litigation may
not be complete sufficiently in advance of the FERC deadline.
Testimony at the evidentiary hearing established that, although it
prefers to do so in 12 months, Columbia can construct the Project
in approximately 9 months. Given that the FERC Certificate requires
Columbia to complete the Project by December 2020, and assuming
there are no other delays, Columbia must commence construction no
later than the time the tree-clearing window closes in March 2020.
Based on the evidence, the prospect that this litigation could be
complete
in
unnecessary,
that
is
time,
rendering
“unfounded”
and
equitable
relief
“fanciful.”
entirely
Columbia
Gas
Transmission, LLC v. 252.071 Acres More or Less, No. ELH-15-3462,
2016 WL 1248670, at *15 (D. Md. Mar. 25, 2016).
18
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
Currently, there are hundreds of defendants and 21 parcels of
land at issue in the case. Some defendants and parcels may be
joined for trial on just compensation, and others may reach
agreements, but requiring Columbia to forego equitable relief would
necessitate several trials before construction could begin. “It is
not at all likely that this Court could accommodate, in the
requisite time, the need for multiple trials, given the Court’s
busy docket.” Id. Even if the Court’s other obligations were less
pressing, it is possible that “some or all of the Landowners may
appeal the outcome of the trials, which could add to the delay.”
Id. (providing example of case that remained pending on appeal more
than two years after its original filing).
C.
The balance of equities tips in Columbia’s favor, and an
injunction is in the public interest.
The third and fourth elements of the preliminary injunction
test require Columbia to establish clearly that the balance of
equities tips in its favor and that an injunction also is in the
public interest. Winter, 555 U.S. at 20. In cases involving
significant public interest, courts may “consider the balance of
the equities and the public interest factors together.” As the
Fourth Circuit has explained:
19
COLUMBIA V. 84.53 ACRES
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MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ORDER OF
CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
Even if Plaintiffs are likely to suffer irreparable harm
in the absence of a preliminary injunction, we still must
determine that the balance of the equities tips in their
favor, “pay[ing] particular regard for the public
consequences in employing the extraordinary remedy of
injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305,
312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). This is
because “courts of equity may go to greater lengths to
give ‘relief in furtherance of the public interest than
they are accustomed to go when only private interests are
involved.’” E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808,
826 (4th Cir. 2004) (quoting Virginian Ry. Co. v. Sys.
Fed'n No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed.
789 (1937)).
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 602 (4th
Cir. 2017).
Particularly in light of the significant public interest at
issue, the irreparable harm that Columbia will likely suffer
outweighs the effect of an injunction on the defendants. Completion
of the Project will have the same impact on the defendants’
property whether Columbia is granted immediate access or commences
construction only after landowners have received just compensation.
The fact that an injunction will deprive the defendants of their
land now rather than later is not “a type of an inherent harm that
is irreparable,” but rather is an ordinary burden of citizenship.
Sage, 361 F.3d at 829. At bottom, it is the NGA and the FERC
Certificate that are responsible for the defendants’ injuries, and
delaying access until just compensation is paid will do nothing to
20
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
alleviate those burdens. See id. (“This is simply a timing argument
. . . .”); Columbia Gas, 768 F.3d at 316 (“The Landowners have not
stated any concrete injury other than the loss of the easements
over their land, which will definitely occur . . . .”).
There simply is no reason to depart from the Fourth Circuit’s
reasoning in Sage:
Congress passed the Natural Gas Act and gave gas
companies condemnation power to insure that consumers
would have access to an adequate supply of natural gas at
reasonable prices. As the district court observed, FERC
conducted a careful analysis of the . . . [p]roject and
determined that the project will promote these
congressional goals and serve the public interest. The
project serves the public interest because, among other
things, it will bring natural gas to portions of
southwest Virginia for the first time. This will make gas
available to consumers, and it will help in the efforts
of local communities to attract much-needed new business.
On a larger scale, the pipeline will make gas available
for electric power generation plants. A delay in
construction would postpone these benefits.
Sage, 361 F.3d at 830 (internal citation omitted).4
Here,
“[t]he
Project
will
increase
deliverability
by
approximately 1,800,000 Dth/d to multiple Midwest, Northeast, and
4
Of course, the Court is cautious in applying the reasoning
in Sage regarding public interest. The Fourth Circuit’s former
reasoning Blackwelder did not require courts to consider public
interest “at length,” while Winter requires that courts “pay
particular regard for the public consequences.” Real Truth About
Obama, Inc., 575 F.3d at 347. In this case, however, the “public
consequences” all weigh in favor of an injunction.
21
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
Mid-Atlantic markets. It will also add an additional 900,000 Dth/d
of capacity to markets in the South and Gulf Coast” (Dkt. No. 7 at
3-4). In addition, FERC has concluded that there is a “need for the
[Project],” and that the “benefits to the market outweigh any
adverse economic effects on existing shippers, other pipelines and
their
captive
customers,
and
landowners
and
surrounding
communities” (Dkt. No. 1-1 at 18).
The Court will not second-guess FERC’s determination that
Columbia’s project will benefit the public need for natural gas;
FERC possesses the expertise necessary to make that determination.
There can be no dispute that delaying Columbia’s completion of the
project will delay the introduction of the benefits identified by
FERC. Moreover, according to Tally, the Project includes the
investment
of
approximately
$50
million
in
public
road
improvements, and expediting construction will hasten the creation
of approximately 8,000 temporary jobs and $55 million per year in
property tax revenue.
In summary, the Court has carefully considered each of the
four factors articulated in Winter, and has given them heightened
scrutiny in light of Columbia’s request for a mandatory preliminary
injunction. Columbia has carried its burden to clearly establish
that it will be irreparably harmed in the absence of a preliminary
22
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MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ORDER OF
CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
injunction, that the harm to the defendants does not outweigh
Columbia’s harm, and that granting immediate access is in the
public interest. Therefore, the Court GRANTS Columbia’s motion for
immediate access and possession of the easements at issue.
V. CASH DEPOSIT AND BOND
Having
determined
that
granting
immediate
access
is
appropriate in this case, the Court must determine the conditions
under which such access should be granted. As an initial matter,
the Court is satisfied that Columbia is capable of providing
“reasonable, certain, and adequate provision” that the defendants
will obtain compensation prior to having their occupancy disturbed.
Sage, 361 F.3d at 824 (citing Cherokee Nation v. S. Kan. Ry. Co.,
135
U.S.
641
(1890)).
Columbia
has
repeatedly
expressed
a
willingness to deposit money with the Court and to obtain a bond
pursuant to Fed. R. Civ. P. 65(c) (Dkt. Nos. 7 at 10-11; 8 at 8).
If just compensation exceeds these amounts, Columbia “will be able
to make up the difference” at the time of judgment or face further
legal action by the defendants. Sage, 361 F.3d at 824. Evidence at
the evidentiary hearing established that TransCanada Corporation,
Columbia’s parent company, has a yearly net income of approximately
$2.5 billion. See id.
23
COLUMBIA V. 84.53 ACRES
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MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ORDER OF
CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
Therefore,
upon
consideration
of
these
facts,
with
the
exception of Columbia Tract No. WV-TY-0008.000,5 the Court finds
that Columbia may immediately access and possess the relevant
easements after the following conditions have been satisfied:
1)
Effective upon entry of this Memorandum Opinion and Order and
satisfaction of the conditions discussed below, Columbia is
granted immediate possession of the easements described in its
complaint, as consistent with the FERC Certificate.
2)
Pursuant to the Federal Rules of Civil Procedure 65(c), 67,
and 71.1(j)(l), the right to immediate possession of the
easements on these properties is contingent upon Columbia
satisfying two requirements as to security. First, pursuant to
the provisions of Fed. R. Civ. P. 71.1(j), Columbia must
deposit with the Clerk of Court (“Clerk”) a certified check in
an amount of three times the appraised amount for each of the
easements sought.6
5
On February 9, 2018, one of the surface owners of this
tract, Ascent Resources Marcellus Minerals, LLC (“Ascent”), filed
a Notice of Suggestion of Pendency of Bankruptcy, advising that it
had filed for bankruptcy protection on February 6, 2018 (Dkt. No.
73). At the evidentiary hearing, Columbia acknowledged that it
cannot presently seek relief in this forum regarding any property
in which Ascent owns an interest.
6
For easements that Columbia has appraised as worth $3,000 or
less, Columbia shall nonetheless base the deposit and bond on a
24
COLUMBIA V. 84.53 ACRES
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MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ORDER OF
CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
3)
Second, Columbia shall obtain and post a surety bond in the
total amount of two times the appraised amount for the
easements sought. The bond shall be conditioned on Columbia’s
payment of any and all final compensation damages awarded in
excess of the deposited amount, and if such payments are made,
then the bond shall be null and void upon full payment having
been made as to all of the properties.
4)
The total value is designed to serve as sufficient security to
protect the interests of the landowners in the event any just
compensation awarded for one or more of the easements exceeds
the appraised amount for such property or properties. The
multiplied value, the bond amount, or the two combined, shall
not be construed as any indication of the floor or ceiling of
the ultimate amount of just compensation, if any, to which any
interest-holder
is
entitled.
Instead,
the
eventual
compensation award by this Court, a jury, or a compensation
commission may be lower, higher, or the same as the amount
Columbia is required to provide as security.
presumed value of $3,001. 15 U.S.C. § 717f(h) (granting
jurisdiction over actions where the “amount claimed by the owner of
the property to be condemned exceeds $3,000").
25
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
5)
Columbia shall remit the deposit amounts to the Clerk for
deposit into the registry of this Court. The Clerk shall
deposit the amounts received into the registry of this Court
and then, as soon as the business of the Clerk’s office
allows, the Clerk shall deposit these funds into the interestbearing Court Registry Investment System administered by the
Administrative
Office
of
the
United
States
Courts
as
Custodian, pursuant to Fed. R. Civ. P. 67.
6)
At the time it remits any deposit or deposit(s), Columbia
shall
also
file
a
chart
broken
down
by
easement
that
identifies: (i) each appraised property for which funds are
being
deposited;
(ii)
the
corresponding
Columbia
parcel
numbers; (iii) the corresponding paragraph numbers in the
amended complaint; (iv) the amount of the deposit for that
specific property (which will be three times the appraised
amount); (vi) the amount of the bond that relates to that
specific property (which will be two times the appraised
amount); and (vii) all persons or entities who own an interest
in the property and the percentage of each person’s interest.
The information shall also be emailed to the Court in an Excel
spreadsheet format. If any party disputes the accuracy of any
26
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
information in the chart, he shall file an objection not later
than seven (7) days after service of the chart. Additionally,
all parties - including Columbia and any defendants who have
an interest in any of the deposited funds - have a continuing
duty, until the conclusion of all proceedings, to advise the
Court if the information in any filed chart changes. This
includes, in particular, a duty to advise the Court if there
is any change for any parcel in the number of owners or the
percentages of their ownership interests.
7)
Pursuant to Fed. R. Civ. P. 71.1(j)(2), the deposit of any
funds for an identified defendant’s property shall constitute
Collumbia’s agreement that the interest-holder can access up
to the base amount of the appraisal or one-third of the
deposited amount, whichever is greater. Such withdrawal is at
the landowner’s peril, and all defendants are advised that, if
the ultimate compensation award is less than the amount
withdrawn, the interest-holder will be liable for the return
of
the
excess
with
appropriate
interest.
If
multiple
defendants claim an interest in any of the easements, each
defendant
claiming
an
interest
27
can
withdraw
only
its
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
proportionate share of the funds identified for that easement
and attributable to its claimed interest.
8)
Each of the defendants shall be entitled to draw from onethird of the funds deposited by Columbia with the Clerk its
ownership share of the amount of estimated just compensation
deposited by Columbia for the easement which burdens lands in
which such defendant owns or claims an interest, subject to
the warnings above, and provided that each such defendant
satisfies all conditions of this Memorandum Opinion and Order
and any other direction of the Court. Furthermore, such
defendants shall be entitled to interest calculated pursuant
to 28 U.S.C. § 1961 from and after the date of entry of this
Memorandum Opinion and Order on the difference between the
principal amount deposited with the Court by Columbia and the
amount of just compensation determined by the Court, if any,
if such determination of just compensation to be paid exceeds
the amount deposited by Columbia.
9)
A defendant who wishes to draw on the deposited funds shall
file a motion for disbursement of funds with the Court and
shall include a certificate of service evidencing service of
the motion on all other persons with a property interest in
28
COLUMBIA V. 84.53 ACRES
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CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
the same parcel or easement, if any. Any person objecting to
the disbursement shall have fourteen (14) days to file a
written objection with the court. The Court will then resolve
any objections and issue an order on the withdrawal request.
If
there
are
no
other
persons
with
an
interest
in
the
property, disbursement will be permitted only by a separate
order of the Court, but the period for objections will not
apply.
VI. CONCLUSION
For the reasons discussed, the Court:
1)
GRANTS the Antero defendants’ Notice of Withdrawal of
Response (Dkt. No. 134);
2)
GRANTS Columbia’s Motion for an Order of Condemnation and
for Preliminary Injunction (Dkt. No. 6);
3)
DENIES AS MOOT Columbia’s Motion for an Expedited Hearing
(Dkt. No. 9); and
4)
DIRECTS Columbia to deposit funds and a surety bond prior
to accessing and taking possession of the properties as
set forth above.
It is so ORDERED.
29
COLUMBIA V. 84.53 ACRES
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MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR ORDER OF
CONDEMNATION AND FOR PRELIMINARY INJUNCTION [DKT. NO. 6]
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED: February 21, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
30
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