Dominion Energy Transmission, Inc. v. 3.71 Acres, More or Less, in Doddridge County, West Virginia et al
Filing
44
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS: It is ORDERED that Plaintiff's 3 Motion for Partial Summary Judgment, 4 Motion for Preliminary Injunction are hereby GRANTED, and DIRECTS DETI to deposit funds and a surety bond prior to accessing and taking possession of the property as set forth herein. Signed by Senior Judge Irene M. Keeley on 3/2/18. (copy Fin. Deputy)(cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DOMINION ENERGY TRANSMISSION, INC.,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:18CV26
(Judge Keeley)
3.71 ACRES OF LAND, MORE OR LESS, IN
DODDRIDGE COUNTY, WEST VIRGINIA, ET AL.,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
The plaintiff, Dominion Energy Transmission, Inc. (“DETI”),
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 expeditious
completion of its project, DETI 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 22, 2018, for the
following reasons, the Court GRANTS DETI’s Motion for Partial
Summary Judgment (Dkt. No. 3) and Motion for Immediate Possession
of the Easements (Dkt. No. 4).
I. LEGAL FRAMEWORK
This proceeding is governed by the Natural Gas Act (“NGA” or
“the Act”), which provides private natural-gas companies the power
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
“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
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
There are, thus, three essential prerequisites that must be
met prior to any exercise of 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
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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 October 13, 2017, FERC granted a Certificate to DETI
authorizing construction of 37.5 miles of natural-gas pipeline in
West Virginia (“the Project”) (Dkt. No. 1-2 at 7).2 The Project
also includes the construction of four compressor units, six valve
sites, and two sets of pig launcher and receiver sites. Id. DETI
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 February 5, 2018, DETI sought to exercise that authority
over certain property located in the Northern District of West
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
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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), DETI included a description of
the property, as well as the interests to be taken (Dkt. Nos. 1 at
6-9; 1-4). On February 6, 2018, DETI moved for partial summary
judgment on its right to condemn the subject property, and sought
a preliminary injunction allowing it to possess immediately the
easements sought (Dkt. Nos. 3; 4). DETI also moved to expedite a
hearing on its motions so that it can “complet[e] necessary preconstruction and construction activities” (Dkt. No. 5). To date, no
defendant has appeared in the case or filed an answer pursuant to
Fed. R. Civ. P. 71.1(e)(2).
On February 22, 2018, the Court conducted an evidentiary
hearing at which, despite having been provided notice, no defendant
appeared.
DETI
presented
the
testimony
of
Matthew
Sickles
(“Sickles”), Supervisor of Engineering for the Project; Jamie
Burton (“Burton”), a Senior Land Agent for the Project; and Wesley
Woods, a real estate appraiser retained for the Project. At the
close of the hearing, the Court directed DETI to provide further
information regarding efforts taken to identify existing mineral
interests that may be affected by the Project.
6
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
On February 28, 2018, DETI filed the Declaration of Jamie
Burton, who declared that DETI had identified and provided notice
to third-party interest holders, that there are no active coal
mines near the Project, and that DETI “is negotiating mutually
acceptable agreements necessary to preserve the integrity of”
surface and near-surface facilities identified during surveying.
(Dkt. No. 40). Burton further declared that, while the property at
issue contains four existing pipelines, the shallow trenching to be
utilized in constructing the Project will not affect oil and gas
interests, and DETI will “either avoid these facilities or take
appropriate measures to protect the[ir] integrity.” Id. at 2-3.
III. MOTION FOR PARTIAL SUMMARY JUDGMENT
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
summary judgment, the Court reviews all the evidence “in the light
most favorable” to the nonmoving party. Providence Square Assocs.,
7
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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
(4th Cir. 2011) (unpublished decision) (quoting Sage, 361 F.3d at
8
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
828). As discussed, to establish that it has the right to condemn,
DETI 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). DETI 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 DETI on October 13, 2017 (Dkt. No. 1-2). Second,
DETI
has
established
that
the
easements
are
“necessary
and
consistent with the easement rights that FERC authorized [DETI] to
obtain.” Rover Pipeline LLC, No. 1:17cv18, 2017 WL 5589163, at *2.
The
uncontested
“[e]asements
evidence
are
in
this
necessary
for
case
demonstrates
constructing,
that
the
maintaining,
operating, altering, testing, replacing, and repairing” the Project
(Dkt. No. 3-3 at 2). Indeed, Sickles testified that the easements
sought in this case are along the route approved by FERC.
Finally, although DETI has engaged in negotiations with all
affected landowners, it has been unable to reach an agreement with
the defendants in this case. DETI made written offers to acquire
the necessary easements in November 2017, but the defendants
rejected those offers and claim that the value of the easements
9
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
exceeds $3,000. Id. at 4. The Court thus concludes that DETI has
been unable to acquire the easements by contract or agreement.
Therefore, because DETI has satisfied the three requirements of 15
U.S.C. § 717f(h), the Court confirms DETI’s right to condemn the
easements described in the complaint and GRANTS its motion for
partial summary judgment (Dkt. No. 3).
IV. MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS
Given its authority to condemn the subject easements, DETI
seeks a preliminary injunction permitting it to access and possess
the easements prior to paying just compensation (Dkt. No. 4). 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
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).
10
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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
DETI’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.
DETI is likely to succeed on the merits.
For the reasons previously discussed, DETI 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.
B.
DETI is likely to suffer irreparable harm.
DETI 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)).
11
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
After carefully reviewing the record, the Court concludes that DETI
will suffer irreparable harm.
DETI first avers that it “cannot meet the [FERC] construction
deadline without immediate possession of [the] easements” (Dkt. No.
4-2 at 3). It is well established that the likelihood that a
natural-gas company will be unable to comply with a FERC deadline
constitutes irreparable harm. See, e.g., Sage, 361 F.3d at 829
(finding irreparable harm where “[i]t would not be possible to meet
FERC’s deadline without a preliminary injunction”); Rover Pipeline
LLC, No. 1:17cv18, 2017 WL 5589163, at *4 (finding irreparable harm
where the inability to access certain easements would prevent the
natural-gas
company
from
meeting
the
target
in-service
date
contained within its Certificate).
Moreover,
under
these
circumstances,
DETI’s
anticipated
economic losses constitute irreparable harm. Typically, “[m]ere
injuries, however substantial, in terms of money, time and energy
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
12
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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).
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)). It is beyond
dispute that, if DETI 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,
13
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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
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
irreparable harm).
14
concerns,”
constituted
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
Here, the FERC Certificate requires DETI to complete its
Project by October 13, 2020 (Dkt. No. 1-2 at 129), but DETI plans
to begin construction immediately and place the pipeline in service
by November 2019. When DETI commences construction, the Project
will proceed in the “linear” fashion that is standard in the
industry (Dkt. No. 4-2 at 3). According to Sickles, if DETI is
forced to break from this method of construction to avoid a parcel
to which it does not have access, DETI will be required to pay its
contractors an additional $500,000. DETI’s construction schedule
hinges on the fact that, in order to comply with regulations of the
United States Fish and Wildlife Service that protect migratory
birds, certain tree clearing must be complete by March 31, 2018.
Id. at 4.
Sickles further testified that, if DETI does not complete the
necessary tree clearing by that time, it will be unable to do so
until at least November 15, 2018, thus delaying completion of the
entire Project by eight months. DETI claims that delaying the
entire Project until that time will prevent its primary shipper
from meeting the needs of its customers (Dkt. No. 4-1 at 7). Such
a delay also would jeopardize DETI’s construction contracts and
allow
its
contractors
to
issue
15
change
orders.
Additionally,
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
constructing the pipeline during the winter months would have a
“disruptive effect” and may lead to further delays (Dkt. No. 4-2 at
4).
Taking
all
of
these
factors
into
consideration,
Sickles
predicted that the inability to begin construction in April would
affect DETI’s ability to meet FERC deadlines for the Project.
Indeed, given the likelihood of trials on just compensation,
this litigation may not be complete sufficiently in advance of the
FERC deadline. In light of the fact that the FERC Certificate
requires DETI to complete the Project by October 2020, DETI’s
construction should proceed no later than the time the treeclearing window closes in March 2020. The prospect that this
litigation could be complete in that time, thereby rendering
equitable
relief
entirely
unnecessary,
is
“unfounded”
and
“fanciful.” 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).
Currently, there six NGA condemnation actions that involve
hundreds of defendants pending before the Court. Some defendants
and parcels may be joined for trial on just compensation, and
others may reach agreements, but if DETI must entirely forego
equitable relief “[i]t is not at all likely that this Court could
16
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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. (pointing to case that remained pending on
appeal more than two years after its original filing). Therefore,
DETI has established that it will be irreparably harmed in the
absence of a preliminary injunction.
C.
The balance of equities tips in DETI’s
injunction is in the public interest.
favor,
and
an
The third and fourth elements of the preliminary injunction
test require DETI 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:
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
17
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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 DETI likely will suffer outweighs the
effect of an injunction on the defendants. Completion of the
Project will have the same impact on the defendants’ property
whether DETI is granted immediate access or commences construction
only after landowners have received just compensation (Dkt. No. 4-2
at 5). 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 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
any
injuries
to
the
defendants, and delaying access until just compensation is paid
will do nothing to 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 . . . .”).
18
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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).3
Here, according to DETI, “[n]atural gas transported by the
[Project] will serve multiple public utilities and is necessary to
satisfy the growing energy needs of residents and businesses in
North Carolina and Virginia” (Dkt. No. 4-2 at 2). FERC concluded
that “the public convenience and necessity” required approval of
the Project, and that the “benefits that the [Project] will provide
3
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.
19
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
to the market outweigh any adverse effects on existing shippers,
other pipelines and their captive customers, and landowners and
surrounding communities” (Dkt. No. 1-2 at 32).
The Court will not second-guess FERC’s determination that
DETI’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 DETI’s completion of the Project
will delay the introduction of the benefits identified by FERC.
Moreover, according to Sickles, expediting construction will hasten
the creation of approximately 800 temporary jobs.
In summary, the Court has carefully considered each of the
four factors articulated in Winter, and has given them heightened
scrutiny in light of DETI’s request for a mandatory preliminary
injunction. DETI has carried its burden to clearly establish that
it will be irreparably harmed in the absence of a preliminary
injunction, that the harm to the defendants does not outweigh
DETI’s harm, and that granting immediate access is in the public
interest. Therefore, the Court GRANTS DETI’s motion for immediate
access and possession of the easements at issue.
20
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
V. CASH DEPOSIT AND BOND
Having determined that immediate access is appropriate in this
case, the Court must further determine the conditions under which
such access should be granted. As an initial matter, the Court is
satisfied that DETI 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)). DETI 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. No. 4-2 at 5). Therefore, upon consideration of
these facts, the Court finds that DETI 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,
DETI
is
granted immediate possession of the easements described in its
complaint, 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
21
is
contingent
upon
DETI
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
satisfying two requirements as to security. First, pursuant to
the provisions of Fed. R. Civ. P. 71.1(j), DETI 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.4
3)
Second, DETI 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 DETI’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
4
For easements that DETI has appraised as worth $3,000 or
less, DETI shall nonetheless base the deposit and bond on a
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").
22
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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
DETI is required to provide as security.
5)
DETI 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 interest-bearing 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), DETI shall
also file a chart broken down by easement that identifies: (i)
each appraised property for which funds are being deposited;
(ii)
the
corresponding
DETI
parcel
numbers;
(iii)
the
corresponding paragraph numbers in the 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
23
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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 information in the chart, he
shall file an objection not later than seven (7) days after
service of the chart. Additionally, all parties - including
DETI 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
DETI’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,
24
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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 can withdraw only its 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 DETI with the Clerk its
ownership share of the amount of estimated just compensation
deposited by DETI 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 directive 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 DETI 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 DETI.
25
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
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
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
In conclusion, for the reasons discussed, the Court:
1)
GRANTS DETI’s Motion for Partial Summary Judgment (Dkt.
No. 3);
2)
GRANTS DETI’s Motion for Immediate Possession of the
Easements (Dkt. No. 4); and
3)
DIRECTS DETI to deposit funds and a surety bond prior to
accessing and taking possession of the property as set
forth above.
26
DETI V. 3.71 ACRES
1:18CV26
MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 3] AND
MOTION FOR IMMEDIATE POSSESSION OF THE EASEMENTS [DKT. NO. 4]
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED: March 2, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
27
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