Columbia Gas Transmission, LLC v. 691.73 Acres of Land More or Less in Clay and Kanawha Counties, West Virginia et al
Filing
102
MEMORANDUM OPINION & ORDER granting Columbia Gas Transmission, LLC's 85 MOTION for Partial Summary Judgment Regarding Plaintiff's Substantive Right to Condemn; the issue of just compensation remains to be determined in this case. Signed by Judge Joseph R. Goodwin on 12/1/2016. (cc: counsel of record; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
COLUMBIA GAS TRANSIMISSION, LLC,
Plaintiff,
v.
CIVIL ACTION NO. 2:16-cv-01223
691.73 ACRES OF LAND MORE OR LESS
IN CLAY AND KANAWHA COUNTIES,
WEST VIRGINIA., et al.,
Defendants.
MEMORANDUM OPINION & ORDER
Pending before the court is plaintiff Columbia Gas Transmission, LLC’s Motion
for Partial Summary Judgment Regarding Plaintiff’s Substantive Right to Condemn
[ECF No. 85].1 No defendants responded in opposition to the motion. For the reasons
herein, the plaintiff’s Motion is GRANTED.
I.
Background
In its motion, Columbia Gas Transmission, LLC (“Columbia”) asks the court to
determine that it properly exercised its right to condemn under a Certificate of
Convenience and Public Necessity (“Certificate”).
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Defendants QS Coal, Inc., D H M Corporation, a/k/a DHM Corporation, a/k/a D.H.M. Corporation, and JASF
Energy, LLC (collectively, “the responding defendants”) filed a Stipulation to Entry of Order Granting Columbia’s
Motion for Partial Summary Judgment Regarding Its Substantive Right to Condemn [ECF No. 88]. While the parties
are permitted to stipulate to facts, they may not stipulate to the law. Accordingly, the court must examine the current
case as it would an unopposed motion for summary judgment.
On December 30, 2015, the Federal Energy Regulatory Commission (“FERC”)
issued Columbia a certificate. See Certificate [ECF No. 1-8]. In the Certificate, FERC
granted Columbia the rights to construct and operate a five-mile pipeline and
supporting facilities in Clay and Kanawha Counties, West Virginia. Id. After
negotiations, Columbia was unable to reach an agreement with the defendant QS
Coal to acquire the easements described in the Certificate, prompting Columbia to
file this condemnation action. Statement Undisputed Material Facts ¶¶ 12–14 [ECF
No. 86]. The responding defendants are the only defendants who contested
Columbia’s right to condemn; however, they no longer dispute that Columbia has the
right to condemn the land specified in the Certificate. Several remaining defendants
who did not contest failed to file any response within twenty-one days of service.2
II.
Legal Standard
To obtain summary judgment, the moving party must show that there is no
genuine dispute as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). In considering a motion for
summary judgment, the court will not “weigh the evidence and determine the truth
of the matter.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Instead, the
court will draw any permissible inference from the underlying facts in the light most
2
Specifically, Queen Shoals Public Service District; County Court of Clay County, West Virginia; Pennzoil-Quaker
State Company; South Penn Natural Gas Company f/k/a ClayCo Gas Company; Prince Land Company; Interstate
Power Company; and the Unknown Owners (“the non-responding defendants”) failed to respond. Id. at ¶ 18. The
West Virginia Department of Transportation, Hope Gas, Inc., Pierson Lumber Company, Inc., and Appalachian Power
Company were all named as defendants originally and were involved in the lawsuit, but they have since been dismissed
from the case. Id. at ¶¶ 16–17, 20–21.
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favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587–88 (1986).
Although the court will view all underlying facts and inferences in the light
most favorable to the nonmoving party, the nonmoving party nonetheless must offer
some “concrete evidence from which a reasonable juror could return a verdict” in his
or her favor. Anderson, 477 U.S. at 256. Summary judgment is appropriate when the
nonmoving party has the burden of proof on an essential element of his or her case
and does not make, after adequate time for discovery, a showing sufficient to establish
that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The nonmoving
party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his or her position. Anderson, 477 U.S. at 252. Likewise,
conclusory allegations or unsupported speculation, without more, are insufficient to
preclude the granting of a summary judgment motion. See Dash v. Mayweather, 731
F.3d 303, 311 (4th Cir. 2013); Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191 (4th
Cir. 1997).
III.
Discussion
The court must first consider whether Columbia has the substantive right to
condemn the land identified in the Certificate. Upon determination of that right, the
court must the consider what effect the non-responding defendants’ failure to respond
to Columbia’s properly provided notice has on the proceeding.
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a. Right to Condemn
No party disputes that Columbia has the right to condemn the easements in
question. Under the Natural Gas Act, FERC the right to grant certificates of public
convenience and necessity to natural gas companies. See 15 U.S.C. § 717f(c). The
holder of a certificate of public convenience and necessity may exercise the power of
eminent domain if it 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.
15 U.S.C. 717f(h). The filing of litigation is strong evidence that the parties are unable
to agree on compensation. See, e.g., USG Pipeline Co. v. 1.74 Acres, 1 F. Supp. 2d 816,
822 (E.D. Tenn. 1998) (“[T]he mere existence of this suit is evidence that [a natural
gas company] was unable to acquire the [properties] by contract.”).
Here, FERC issued Columbia its Certificate, granting Columbia the rights to
construct and operate a five-mile pipeline and supporting facilities in Clay and
Kanawha Counties, West Virginia. See Certificate. Moreover, Columbia brought the
present lawsuit when it could not agree on compensation with QS Coal, Inc.,
providing strong evidence that it was unable to acquire the properties by contract.3
3
The responding defendants initially asserted the affirmative defense that Columbia never negotiated with them
regarding the property; however, they now seek to stipulate summary judgment. See, e.g., JASF Answer 17. As such,
the court will consider the responding defendants’ affirmative defense that the parties had been “unable to agree”
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Statement Undisputed Material Facts ¶¶ 13–14. Therefore, because FERC granted
Columbia its Certificate and Columbia could not agree on compensation with the
parties, I FIND Columbia has the right to condemn the land identified in the
Certificate.
b. Failure to Respond
Pursuant to Rule 71.1 of the Federal Rules of Civil Procedure, Columbia served
a number of other parties who have potential or real interests in the land. See Fed.
R. Civ. P. 71.1(d). After properly serving parties according to Rule 71.1’s
requirements, the non-responding defendants failed to respond. Statement
Undisputed Material Facts ¶ 18. Because those defendants failed to respond within
twenty-one (21) days, they have consented to the taking and the court’s authority to
fix compensation and waived any objections and defenses. See Fed R. Civ. P.
71.1(d)(2)(A)(iv), 71.1(e). Therefore, although those defendants may later participate
in any proceeding to determine just compensation, I FIND they waived their right to
object or assert affirmative defenses that Columbia has no right to condemn the land
identified in the Certificate.
IV.
Conclusion
In summary, I FIND that Columbia has the right to condemn the land
identified in the Certificate and that the non-responding defendants waived their
sufficiently to invoke eminent domain waived. See E. Tenn. Nat. Gas, LLC v. 1.28 Acres in Smyth Cty., Va., No.
CIV.A. 1:06-CV-00022, 2006 WL 1133874, at *10 (W.D. Va. Apr. 26, 2006) (permitting parties to concede 15 U.S.C.
717f(h)’s requirement that the parties be “unable to agree” prior to the institution of eminent domain proceedings).
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right to object to Columbia’s right to condemn. Therefore, I GRANT Columbia Gas
Transmission, LLC’s Motion for Partial Summary Judgment Regarding Plaintiff’s
Substantive Right to Condemn [ECF No. 85]. The issue of just compensation,
however, remains to be determined in this case.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented party.
ENTER:
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December 1, 2016
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