Columbia Gas Transmission, LLC et al v. Caiman Energy LLC
Filing
23
MEMORANDUM OPINION AND ORDER Confirming The Pronounced Order Of The Court Denying The Plas' 5 Motion for TRO. Signed by Senior Judge Frederick P. Stamp, Jr on 6/27/11. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
COLUMBIA GAS TRANSMISSION, LLC and
NiSOURCE MIDSTREAM SERVICES, LLC,
Plaintiffs,
v.
Civil Action No. 5:11CV85
(STAMP)
CAIMAN ENERGY, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
CONFIRMING THE PRONOUNCED ORDER OF THE COURT
DENYING THE PLAINTIFFS’ MOTION FOR
TEMPORARY RESTRAINING ORDER
I.
Background
The plaintiffs, Columbia Gas Transmission, LLC (“Columbia”)
and NiSource Midstream Services, LLC (“NiSource”), filed the abovestyled civil action in this Court to enjoin the defendant, Caiman
Energy LLC (“Caiman”), from using the plaintiffs’ pipeline rightsof-way as a pipeline crossing for Caiman’s own pipeline without a
“full safety review” by the plaintiffs and approved safety measures
being undertaken by Caiman. The plaintiffs argue that Caiman’s use
of the rights-of-way without this review interferes with the
plaintiffs’ right and obligation to safely operate and maintain its
own pipeline under federal and state law.
NiSource operates Line 1758, a twenty inch natural gas and
liquids pipeline operated at 900 pounds of pressure per square
inch. NiSource also operates Line 10100, a twenty-six inch natural
gas pipeline operated at 400 pounds of pressure per square inch.
NiSource owns rights-of-ways across properties in Marshall County,
West Virginia on which these lines run.
These rights-of-ways
provide NiSource the right to operate and maintain the pipelines.
The defendant seeks to construct and operate its own natural gas
pipeline,
which
will
cross
the
plaintiffs’
pipelines.
The
defendant believes that the plaintiffs’ request for a full safety
review does not comport with industry standard, partly evidenced by
its assertion that the defendant has crossed the plaintiffs’
pipelines on at least 19 other occasions within the past 18 months
without having to provide the plaintiffs with similar information.
On these prior occasions, Caiman states it has provided the
plaintiffs with information regarding the proposed crossings such
as the geographic locations of the crossings.
The defendant
asserts that it has invited the plaintiffs to have personnel onsite to conduct inspections during the excavation process.
The plaintiffs filed a motion for a temporary restraining
order, preliminary and permanent injunction.
In support of this
motion, the plaintiffs argue: (1) they are likely to succeed on the
merits; (2) they will be irreparably injured by a denial of their
requested temporary restraining order and injunctive relief; (3)
granting
the
plaintiffs’
preliminary
relief
will
cause
the
defendant no significant harm; and (4) granting the plaintiffs’
preliminary relief is in the public interest.
The plaintiffs
contend that they are not attempting to block the construction of
the defendant’s pipeline.
Instead, the plaintiffs state that they
2
are merely trying to make certain that the crossing is done in a
safe manner.
The defendant then filed a response in opposition, contending:
(1) the plaintiffs are not likely to succeed on the merits because
the defendant has a valid and enforceable property interest and has
complied with all applicable laws related to pipeline crossings;
(2) the plaintiffs present no evidence of irreparable harm; (3) the
defendant
will
suffer
harm
if
the
plaintiffs’
request
for
injunctive relief is granted; and (4) injunctive relief does not
promote the public interest.
On June 21, 2011, the parties appeared before this Court for
a hearing pursuant to Federal Rule of Civil Procedure 65 on the
plaintiffs’ motion for a temporary restraining order.1
For the
reasons set forth below, this Court denies the plaintiffs’ motion
for a temporary restraining order.2
II.
Applicable Law
The United States Court of Appeals for the Fourth Circuit has
recognized that preliminary injunctions and temporary restraining
orders “are extraordinary remedies involving the exercise of a very
far-reaching power to be granted only sparingly and in limited
circumstances.”
MicroStrategy Inc. v. Motorola, Inc., 245 F.3d
1
At the hearing, this Court received evidence and heard
argument and testimony only as to the plaintiffs’ motion for a
temporary restraining order.
2
This memorandum opinion and order confirms the pronounced
ruling of this Court made at the conclusion of the June 21, 2011
motion hearing.
3
335,
339
(4th
Cir.
2001)
(quoting
Direx
Israel,
Ltd.
v.
Breakthrough Med. Corp., 953 F.2d 802, 816 (4th Cir. 1992))
(internal quotations omitted).
In The Real Truth About Obama, Inc. v. Federal Election
Commission, 575 F.3d 342, 346-47 (4th Cir. 2009), the Fourth
Circuit set forth the equitable factors that a district court must
consider when determining whether a temporary restraining order or
preliminary injunction should issue.
The four factors that the
plaintiffs must establish to obtain a temporary restraining order
under the Fourth Circuit test are:
(1) 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.
Id. at 346 (citing Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7, 129 S. Ct. 365, 374 (2008)).
III.
A.
Discussion
Likelihood of Success on the Merits
In this case, the plaintiffs seek a temporary restraining
order prohibiting the defendant from using the rights-of-way for a
pipeline crossing until a proper safety study has been completed
and appropriate steps to ensure the safety of the pipelines. It is
undisputed in this case that both NiSource and Caiman have separate
valid right-of-way agreements which grant them the right to operate
and maintain gas pipelines over the property involved in this civil
action. NiSource argues that Caiman is interfering with NiSource’s
4
rights-of-way by crossing the pipelines without NiSource’s review
of
its
plans,
negatively
which
impact
has
the
NiSource’s
potential
pipelines,
to
significantly
and
the
environment,
and
surrounding persons and property, should the crossing be done
improperly.
The plaintiffs contend that NiSource’s safety requirements
have been created and implemented to ensure the safety of the party
crossing
the
pipelines,
the
integrity
of
the
pipeline
being
crossed, as well as the safety of the public and the environment.
NiSource additionally requires safety requirements for pipelines
being crossed in an active mining zone.
This Court finds that the plaintiffs have not made a clear
showing that they are likely to succeed on the merits at this
point. The defendant is correct that the plaintiffs have not shown
that NiSource’s easement is exclusive.
Both easements allow both
parties to construct and operate a natural gas pipeline.
The plaintiffs contend that they have discretion on whether to
allow a crossing pipeline and that Caiman knew that it was buying
an interest in property second in time to the plaintiffs’ easement.
While the plaintiffs are correct that Caiman cannot destroy or harm
NiSource’s easement, it is incorrect to argue that they may
determine whether Caiman can utilize its subsequent natural gas
pipeline easement simply because NiSource’s easement is first in
time.
The plaintiffs contend that this case is equivalent to a
landowner who purchases a property with a right-of-way easement and
5
then complains of the easement owners traversing the land.
Court does not agree.
This
In this case, Caiman did not purchase an
interest in property and then complain that the first easement
holder should be enjoined from the use of his property interest.
In this situation, it is actually the first easement holder,
NiSource, stating that the second easement holder, Caiman, cannot
perform a valid use of its easement simply because there might be
a risk of harm to the first easement holder.
Additionally, the plaintiffs have not made a clear showing
that
its
requirements
requirements
crossings.
represent
for
the
Caiman
are
industry
necessary
standard
or
for
that
its
pipeline
The plaintiffs, at the hearing, have not provided this
Court with any specific information on how Caiman’s proposed
operations are unsafe.
Furthermore, the plaintiffs have not made
a clear showing that Caiman has not followed federal and state
regulations and laws, specifically, the Natural Gas Act, 15 U.S.C.
§ 717-717z, the Natural Gas Pipeline Safety Act, 49 U.S.C. § 60101,
et seq., or W. Va. Code § 24B-1-1, et seq.
The plaintiffs have
shown neither that the they have complete discretion regarding the
crossing given the industry standards, nor that the above statutes
specifically require that the defendant comply with the plaintiffs’
requirements.
This Court also notes that NiSource has allowed
Caiman to cross its pipelines on at least 19 other occasions
without imposing these requirements.
While this factor alone is
not an equitable bar, or estop the plaintiffs from making their
6
arguments, this Court does take that factor into account in making
its determination regarding the granting of a temporary restraining
order.
Based on the testimony presented to this Court, the plaintiffs
have not clearly shown at this point that they will succeed on the
merits at trial.
As this Court noted at the hearing, this finding
may change as this case proceeds through discovery.
B.
Irreparable Harm in the Absence of Preliminary Relief
Winter v. Natural Resources Defense Council, Inc. “requires
that the plaintiff make a clear showing that it is likely to be
irreparably harmed absent preliminary relief.”
Obama, Inc., 575 F.3d at 347.
Real Truth About
In this case, the plaintiffs’
complaint, motion for temporary restraining order, and hearing
testimony include no facts in support of the argument that the
plaintiffs are likely to be irreparably harmed absent a temporary
restraining order.
The plaintiffs assert that interference with
the ability to properly maintain a natural gas pipeline poses the
threat of irreparable harm. However, the defendant correctly notes
that
irreparable
harm
to
the
plaintiffs
imminent, not remote and speculative.
must
be
actual
and
See Mylan Pharmaceuticals,
Inc. v. Thompson, 207 F. Supp. 2d 476, 484 (N.D. W. Va. 2001).
As
mentioned above, the plaintiffs have not made a clear showing that
the defendant has failed to follow state and federal laws.
plaintiffs
also
have
not
shown
that
the
standards fall below the industry standard.
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defendant’s
The
safety
The plaintiffs merely
allege that they could potentially be irreparably harmed if the
defendant damages the plaintiffs’ pipelines.
Accordingly the
plaintiffs failed to establish that they are likely to suffer
irreparable harm in the absence of a temporary restraining order.
C.
Balance of Equities
When weighing the parties’ respective injuries and balancing
the equities to determine whether a preliminary injunction should
issue, the court should consider: (1) the relative importance of
the rights asserted and the act sought to be enjoined; (2) the
preservation of the status quo; and (3) the balancing of damage and
convenience generally.
See Sinclair Refining Co. v. Midland Oil
Co., 55 F.2d 42, 45 (4th Cir. 1932).
In this case, the plaintiffs
state that the granting of a temporary restraining order will not
cause the defendant significant harm.
The
defendant
states
that
it
will
suffer
harm
if
the
plaintiffs’ request is granted. It argues that in order to protect
the status quo, this Court must deny the request for a temporary
restraining order.
Caiman states that crossings of pipeline often
occur and that granting injunctive relief would set a dangerous
precedent in allowing existing owners of pipeline easements to
exert
unilateral
easement holders.
control
over
the
crossing
process
by
other
The plaintiffs state that their review process
will take up to sixty days.
The defendant states that in normal
industry practice, the review process and decision occur within
several days of initial notice.
Caiman asserts that requiring it
8
to wait two months prior to crossing a pipeline when there is
insufficient evidence of unsafe or improper actions, would harm its
business operations and its relationships with its customers.
Caiman also contends that it has incurred and continues to
incur costs from its contractors for mobilizing equipment and
constructing the pipeline out of sequence.
It argues that it has
experienced more damages than the plaintiffs.
This Court finds that the balance of equities does not tip in
favor of the plaintiffs. Furthermore, because this Court has found
that
the
plaintiffs
“failed
to
show
that
they
will
suffer
irreparable harm in the absence of a [temporary restraining order;]
the balance of equities does not favor Plaintiffs.”
Z-Man Fishing
Products, Inc. v. Renosky, --- F. Supp. 2d ----, 2011 WL 1930636
(D.S.C. 2011).
D.
Public Interest
In Winter v. Natural Resources Defense Council, Inc., “the
Supreme Court emphasized the public interest requirement, stating,
‘In exercising their sound discretion, courts of equity should pay
particular regard for the public consequences in employing the
extraordinary remedy of injunction.’”
Real Truth About Obama, 575
F.3d at 347 (quoting Winter, 129 S. Ct. at 376-77).
both
the
plaintiffs
and
the
defendant
can
In this case,
accurately
and
appropriately argue that the public interest is in their favor.
The plaintiffs are correct that there is an important public
interest in safely transporting energy products.
9
Similarly, the
defendant is correct that it is in the public interest to provide
pipeline crossings such as those contemplated in this case to those
companies that are entitled to them under a valid right-of-way
agreement.
Because the plaintiffs have failed to establish the four
factors laid out in The Real Truth About Obama, Inc., this Court
finds that the issuance of a temporary restraining order is
unwarranted at this time.
The plaintiffs can show no undue
hardship as a result of the denial of their motion for a temporary
restraining order.
This Court also believes that it is important
to note that the plaintiffs have not acted in bad faith by filing
the motion for a temporary restraining order. As stated above, the
plaintiffs did not make a clear showing at the trial that their
requests of the defendant were the industry standard.
IV.
Conclusion
For the reasons stated above, the plaintiffs’ motion for a
temporary restraining order is DENIED.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this memorandum
opinion and order to counsel of record herein.
DATED:
June 27, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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