Mountain Valley Pipeline, L.L.C. v. An Easement to Construct, Operate and Maintain a 42-Inch Gas Transmission Line Across Properties in the Counties of Nicholas, Greenbrier, Monroe, Summers, Braxton, Harrison, Lewis, Webster, and Wetzel, WV et al

Filing 231

MEMORANDUM OPINION AND ORDER granting Mountain Valley's 116 , 157 , 212 motions to strike; denying as stricken the landowners' 78 , 120 , 203 motions to dismiss; denying the landowners' 119 MOTION for stay of proceedings ; granting Mountain Valley's 6 MOTION for Partial Summary Judgment and immediate access to and possession of the easements condemned in Nicholas, Greenbrier, Summers, and Monroe Counties, West Virginia; the court directs Mountain Valley to post the deposit and security as directed, which is a predicate to Mountain Valley's right to possess the condemned property, and as further directed and set forth more fully herein. Signed by Judge John T. Copenhaver, Jr. on 2/21/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MOUNTAIN VALLEY PIPELINE, LLC,
Plaintiff,
v.

Civil Action No. 2:17-cv-04214

AN EASEMENT TO CONSTRUCT,
OPERATE AND MAINTAIN A 42-INCH
GAS TRANSMISSION LINE ACROSS
PROPERTIES IN THE COUNTIES OF
NICHOLAS, GREENBRIER, MONROE,
and SUMMERS, WEST VIRGINIA, et
al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff Mountain Valley Pipeline, LLC’s
(“Mountain Valley”) motion for partial summary judgment and
immediate access to and possession of the easements condemned,
(ECF #6), filed October 27, 2017.

Also pending are three

motions to dismiss, three motions to strike, and one motion to
stay, each of which also will be discussed herein.

I. Background

A. Legal Framework

The Natural Gas Act (“NGA”), 15 U.S.C. § 717 et seq.,
outlines the power to regulate and approve new pipeline

construction projects.

At the outset, construction of a new

pipeline cannot commence until a gas company obtains from the
Federal Energy and Regulatory Commission (“FERC”) a certificate
of public convenience and necessity (a “certificate”).
U.S.C. § 717f(c)(1)(A).

15

FERC may issue a certificate

authorizing the whole or any part of the operation . .
. if it is found that the applicant is able and
willing properly to do the acts and to perform the
service proposed and to conform to the provisions of
[the NGA] and the requirements, rules, and regulations
of [FERC] thereunder, and that the proposed service,
sale, operation, construction, extension, or
acquisition, to the extent authorized by the
certificate, is or will be required by the present or
future public convenience and necessity.
Id. § 717f(e).

FERC also “[has] the power to attach to the

issuance of the certificate and to the exercise of the rights
granted thereunder such reasonable terms and conditions as the
public convenience and necessity may require.”

Id.

Once FERC issues a certificate, the certificate holder
has the power of eminent domain over properties that are
necessary to complete an approved project and that the holder
has been unable to acquire by agreement.

See id. § 717f(h).

The NGA mandates that condemnation proceedings “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.”

Id.

The United States Court of Appeals

for the Fourth Circuit holds “that this state procedure
2

requirement has been superseded by [Federal Rule of Civil
Procedure 71.1].”

E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808,

822 (4th Cir. 2004).
The Fourth Circuit’s opinion in East Tennessee Natural
Gas Co. v. Sage dictates the progression of condemnation and
immediate possession actions under the NGA.

In Sage, the Fourth

Circuit approached the following question: “[W]hether a court
may use its equitable powers to grant a preliminary injunction
allowing immediate possession” in an NGA condemnation action
even though the NGA “is silent on the issue of immediate
possession.”

Id. at 823.

The court answered in the affirmative

and explained 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.
Id. at 828.

B. Factual and Procedural Background

FERC issued Mountain Valley’s certificate on October
13, 2017, authorizing construction of a 303.5-mile long natural
gas pipeline of 42-inches in diameter.
310(A).)

(See Compl. Ex. B, ¶¶ 7,

The pipeline originates in Wetzel County, West

Virginia, and terminates in Pittsylvania County, Virginia.
3

(Id.

¶ 7.)

In the Southern District of West Virginia, the pipeline

traverses properties in Nicholas, Greenbrier, Summers, and
Monroe Counties and specifies a compressor station in Fayette
County.

The certificate requires Mountain Valley to satisfy a

variety of conditions, including a three-year construction and
in-service deadline and a number of environmental prerequisites
to be met before and during construction.

(See id. ¶ 310(C)(1),

App. C.)
The easements sought by Mountain Valley are a
necessary predicate to building the pipeline.

(Declaration of

Robert J. Cooper on Access for Construction (“Cooper
Construction Decl.”) ¶ 10.)

Although Mountain Valley obtained

some of the necessary easements by agreement prior to filing
this action, it failed to acquire many in the four-county region
noted above despite offering at least $3,000 for each one.
¶¶ 7-8.)

(Id.

Thus, Mountain Valley initiated this action in this

court on October 24, 2017, pursuant to the NGA and Federal Rule
of Civil Procedure 71.1.
Soon thereafter, on October 27, 2017, Mountain Valley
filed three motions: Motion for Partial Summary Judgment and
Immediate Access to Survey the Easements Condemned (ECF #4);
Motion for Partial Summary Judgment and Immediate Access to and
Possession of the Easements Condemned for Construction of MVP
4

Project (ECF #6); and Motion for Expedited Hearing on Motions
for Partial Summary Judgment and Immediate Access to and
Possession of the Easements Condemned (ECF #8).

The court

permitted limited discovery until January 12, 2018, and set a
briefing schedule for the surveying and construction motions.
(ECF #143.)

On January 12, 2018, the court granted Mountain

Valley’s request for immediate access to survey “to the extent
that it [sought] access to the properties . . . that ha[d] not
already been surveyed by agreement of the parties, and for the
limited purposes” of staking environmental and cultural
resources.

(ECF #186, at 2.)

On January 24, 2018, briefing

concluded on the pending motion, wherein Mountain Valley
requests partial summary judgment of its power of eminent domain
and a preliminary injunction granting it immediate possession of
the condemned properties for construction activities.

The court

held a preliminary injunction hearing on February 7, 2018.
issues are now ripe for disposition.

The

II. Motions to Dismiss, Strike, and Stay

Before addressing the motion for partial summary
judgment and preliminary injunction, the court must first
address the various parties’ motions to dismiss, strike, and

5

stay. 1

The landowners 2 have filed three motions to dismiss, (ECF

#78, 120, 203), and Mountain Valley has moved to strike each
one, (ECF #116, 157, 212).

Mountain Valley aptly points out

that the motions to dismiss should be denied because Rule 71.1
does not permit such motions in condemnation actions.

(See,

e.g., ECF #117, at 1-2.)
Rule 71.1 expressly states that, other than an answer,
“[n]o other pleading or motion asserting an additional objection
or defense is allowed.”

Fed. R. Civ. P. 71.1(e)(3).

The

Advisory Committee Notes explain that subdivision (e)
“[d]epart[s] from the scheme of Rule 12, . . . requir[ing] all
defenses and objections to be presented in an answer.”
Civ. P. 71.1(e) advisory committee notes.

Fed. R.

The notes continue

that subdivision (e) “does not authorize a preliminary motion,”
of which “[t]here is little need . . . in condemnation

1

Additionally, Warrior Energy Resources, LLC, (“Warrior”) moved
to intervene on December 22, 2017. At the February 7 hearing,
counsel for Warrior represented to the court that it was close
to a settlement agreement with Mountain Valley and requested
that its motion be held in abeyance for the time being.
Additionally, at that time, Warrior withdrew its objections to
Mountain Valley’s motion for partial summary judgment and
preliminary injunction.
2

As it is used here and throughout this memorandum opinion and
order, “landowners” refers to one or more of the defendantlandowners in this action. Because the landowners often make
overlapping arguments, and because there are a great number of
landowners, specific reference to each landowner would
needlessly confound the analysis.
6

proceedings.”

Id.

Correspondingly, the Fourth Circuit

unequivocally holds that, under Rule 71.1, “no other pleading
besides the answer is contemplated.”

Wash. Metro. Area Transit

Auth. v. Precision Small Engines, 227 F.3d 224, 228 n.2 (4th
Cir. 2000); accord Atlantic Seaboard Corp. v. Van Sterkenburg,
318 F.2d 455, 458 (4th Cir. 1963) (“[Rule 71.1’s] prohibition of
any pleading other than an answer is clear and unequivocal.

The

preliminary motions tendered here were unallowable.”).
Accordingly, Mountain Valley’s motions to strike are granted,
and the motions to dismiss are denied as stricken.
Next, the landowners filed a motion for stay of
proceedings.

Again, Mountain Valley correctly notes that the

NGA delineates when and how a certificate may be stayed.
ECF #160, at 2-7.)

(See

The NGA directs that

[t]he filing of an application for rehearing . . .
shall not, unless specifically ordered by [FERC],
operate as a stay of [FERC’s] order. The commencement
of [appellate] proceedings [in the courts of appeal]
shall not, unless specifically ordered by the court,
operate as a stay of [FERC’s] order.
15 U.S.C. § 717r(c).

Thus, the court lacks discretion to order

a stay of Mountain Valley’s certificate.

Accord, e.g., Tenn.

Gas Pipeline Co. v. Mass. Bay Transp. Auth., 2 F. Supp. 2d 106,
109 (D. Mass. 1998) (“The NGA itself directs that an order by
FERC not be stayed unless either FERC itself — in the context of

7

a rehearing — or the reviewing Court of Appeals specifically
orders a stay.”).
Even so, the landowners argue that the court retains
the equitable power to stay “proceedings on [Mountain Valley’s]
equitable motion for preliminary injunction until FERC concludes
its ‘further consideration’ of Landowners’ request for
rehearing.”

(ECF #169, at 4.)

Fundamentally, the landowners

ask the court to deny Mountain Valley’s motion for preliminary
injunction – time-sensitive by its very nature – under the guise
of a stay based on the alleged irreparable harms that they may
face if Mountain Valley is granted immediate possession of the
easements.

Assuming that the court has such authority, which it

does not pursuant to the NGA, the court cannot grant the relief
requested.

The Supreme Court instructs that four factors are to

be considered in a preliminary injunction analysis, while the
landowners implore the court for an effective denial of Mountain
Valley’s motion based upon only one – balance of the equities.
See Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20,
25-26 (2008).

The motion for stay of proceedings is denied.

8

III. Motion for Partial Summary Judgment of Power of Eminent
Domain Under the NGA

A. Governing Standard

Pursuant to Federal Rule of Civil Procedure 56(b), “a
party may file a motion for summary judgment at any time until
30 days after the close of all discovery.”

Summary judgment is

appropriate only “if the movant shows 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).

“As to materiality, . . . [o]nly disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.
Factual disputes that are irrelevant or unnecessary will not be
counted.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986) (citing 10A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2725 (2nd ed. 1983)).
Regarding genuineness, “summary judgment will not lie
if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Id.

The moving party has the

initial burden of “‘showing’ - that is, pointing out to the
district court - that there is an absence of evidence to support
9

the nonmoving party's case.”

Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986); see also Dash v. Mayweather, 731 F.3d 303, 311
(4th Cir. 2013).

If the movant carries its burden, the non-

movant must demonstrate that “there is sufficient evidence
favoring [it] for a jury to return a verdict” in its favor.
Anderson, 477 U.S. at 249 (citation omitted); see also Dash, 731
F.3d at 311.

“Although the court must draw all justifiable

inferences in favor of the nonmoving party, the nonmoving party
must rely on more than conclusory allegations, mere speculation,
the building of one inference upon another, or the mere
existence of a scintilla of evidence.”

Dash, 731 F.3d at 311

(citing Anderson, 477 U.S. at 252, and Stone v. Liberty Mut.
Ins. Co., 105 F.3d 188, 191 (4th Cir. 1997)).

B. Discussion

Mountain Valley moves the court for entry of partial
summary judgment that it has the power of eminent domain under
the NGA.

The NGA confers the power of eminent domain when (1)

the condemnor has a certificate authorizing construction of a
project; (2) the property interests to be condemned are
necessary to complete the project; and (3) the condemnor has
been unable to acquire the necessary property interests by
agreement.

See id. § 717f(h).

Mountain Valley argues that the

10

undisputed facts demonstrate its satisfaction of all three
elements. 3

(See generally ECF #7.)

The court agrees.

The defendants mount a variety of attacks against
Mountain Valley’s condemnation authority.

First, however, the

court must determine whether it has the power to hear these
challenges.
orders.

The NGA defines the power of review over FERC

It sets forth a procedure that begins with FERC, then

the courts of appeals, and lastly the Supreme Court.
U.S.C. § 717r(a), (b).

See 15

Accordingly, the Fourth Circuit holds

that
15 U.S.C. § 717r(b)[] vests exclusive jurisdiction to
review all decisions of [FERC] in the circuit court of
appeals; there is no area of review, whether relating
3

There is an additional prong to whether the court can entertain
Mountain Valley’s condemnation action. The NGA states “[t]hat
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.” Id. Mr. Cooper swears that each
landowner was offered at least $3,000 for the associated
easement, (Cooper Construction Decl. ¶ 8), which the court
presumes to be a sum in excess of $3,000 for each property. The
courts appear to agree that an offer exceeding $3,000 satisfies
the NGA’s jurisdictional test. See ANR Pipeline Co. v. 62.026
Acres of Land, 389 F.3d 716, 717-19 (7th Cir. 2004) (finding
that the landowners “claimed” in excess of $3,000 when they
turned down an offer of $4,872 in an effort to proceed in state
court); Dominion Energy Carolina Gas Transmission, LLC v. 1.169
Acres, 3:16-cv-01974-JMC, 2018 WL 330012, at *2 (D.S.C. Jan. 8,
2018) (finding the jurisdiction amount satisfied where the
condemnor stipulated that the property values exceeded $3,000);
In re Algonquin Nat. Gas Pipeline Eminent Domain Cases, No. 15cv-5988, 2015 WL 10793423, at *5, 10 (S.D.N.Y. Sept. 18, 2015)
(finding the jurisdictional amount satisfied when the offer
exceeded $3,000 even though the condemnor’s appraiser valued the
land at less than $3,000).
11

to final or preliminary orders, available in the
district court. And this has been the uniform
construction given the statute.
Consolidated Gas Supply Corp. v. FERC, 611 F.2d 951, 957 (4th
Cir. 1979) (citations omitted).

In other words, the NGA’s

review provision extends to “all issues inhering in the
controversy, and all other modes of judicial review;” “all
objections to the [certificate] . . . must be made in the Court
of Appeals or not at all.”

City of Tacoma v. Taxpayers of

Tacoma, 357 U.S. 320, 335-36 (1958) (parsing a judicial review
section that is virtually identical to the NGA’s); see also
Williams Nat. Gas Co. v. City of Oklahoma City, 890 F.2d 255,
262 (10th Cir. 1989) (“We would be hard pressed to formulate a
doctrine with a more expansive scope.”).
It follows, then, that this court does not have
jurisdiction to hear any of the landowners’ challenges that
would require the court to undertake review of the certificate
or that which FERC is authorized to consider thereunder. 4

4

See

Furthermore, even if one of the challenges brought by the
defendants falls outside the NGA’s review provision, the Western
District of Virginia recently held that a district court “would
still lack jurisdiction over [challenges to a certificate] based
on an application of the so-called Thunder Basin framework.”
Berkley v. Mountain Valley Pipeline, LLC, No. 7:17-cv-00357,
2017 WL 6327829, at *5 (W.D. Va. Dec. 11, 2017) (Dillon, J.).
Thunder Basin recognizes that “Congress can also impliedly
preclude jurisdiction by creating a statutory scheme of
administrative adjudication and delayed judicial review in a
particular court” – in this case, the courts of appeals.
12

Williams Nat. Gas Co., 890 F.2d at 262 (“Thus, a challenger may
not collaterally attack the validity of a prior FERC order in a
subsequent proceeding.”).

One district court has described its

limited review authority as “determining whether (1) the
certificate of public convenience and necessity is ‘facially
valid’; and (2) the property sought to be condemned is within
the scope of the certificate” – in other words, ensuring that
the certificate holder is not committing a fraud on the court
and the condemnees.

Alliance Pipeline v. 4.500 Acres of Land,

911 F. Supp. 2d 805, 813 (D.N.D. 2012) (citations omitted).
Many of the landowners’ challenges to Mountain
Valley’s condemnation authority are improper in this court.
Those challenges can be summarized as follows: FERC has
erroneously interpreted its congressional authority to condition
certificates, (ECF #202, at 3 n.4); there is not yet a “public
necessity” for the taking as required by the Fifth Amendment
because Mountain Valley has not satisfied all of the conditions
precedent to construction, and Mountain Valley thus lacks the
substantive power of eminent domain, (ECF #155, at 4-5; ECF
#196, at 5; ECF #202, at 1-5; ECF #206, at 2-4); if Mountain
Valley lacks the power of eminent domain, it cannot show that

Bennett v. SEC, 844 F.3d 174, 178 (4th Cir. 2016) (citing
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994)).
13

the landowners’ property interests are necessary, (ECF #155, at
5); and Mountain Valley has not proven that it can pay just
compensation as required by the Fifth Amendment, (ECF #202, at
5-7).
Congress has forbidden the district courts from
considering any of these arguments because each would require
review of FERC’s order.
F.2d at 957.

See Consolidated Gas Supply Corp., 611

Indeed, Mountain Valley cites a series of district

court opinions reinforcing that point, (see ECF #208, at 4-7,
13-16, 19-20 (citing cases)), and the court has not found any
opinions holding otherwise.

Although the landowners bring some

debate as to the scope of matters under FERC’s purview, the
range of FERC’s authority is exceptionally broad: it is
comprehensive of “all factors bearing on the public interest” as
they pertain to the regulation of natural gas projects.
Atlantic Refining Co. v. Pub. Serv. Comm’n of N.Y., 360 U.S.
378, 391 (1959); accord 15 U.S.C. § 717(a) (“[I]t is declared
that the business of transporting and selling natural gas for
ultimate distribution to the public is affected with a public
interest, and that Federal regulation in matters relating to the
transportation of natural gas and the sale thereof in interstate
and foreign commerce is necessary in the public interest.”).
Accordingly, the aforementioned arguments are improper here.

14

The remainder of the landowners’ assertions are also
readily discarded.

The landowners insist that the various

challenges that Mountain Valley faces before FERC and the courts
of appeals counsel against the granting of partial summary
judgment.

(ECF #206, at 3-4.)

As explained earlier, a FERC

order remains in effect unless FERC or a court of appeals issues
a stay, see 15 U.S.C. § 717r(c), and no such stay has been
issued here.
The landowners contend that Mountain Valley did not
negotiate the purchase of their property interests in good
faith, and that there should be a good-faith negotiation
requirement under the NGA before the grant of condemnation
authority.

(ECF #155, at 6; ECF #205, at 10-12, 14-16.)

The

landowners cite two out-of-circuit district court opinions for
the proposition that the NGA requires condemnors to negotiate in
good faith.

See Humphries v. Williams Nat. Gas Co., 48 F. Supp.

2d 1276, 1280 (D. Kan. 1999) (“The court does not believe that
[the condemnor’s] post-entry offer to compensate [the condemnee]
complies with either the letter or spirit of § 717f(h)) . . .
.”); Transcon. Gas Pipe Line Corp. v. 118 Acres of Land, 745 F.
Supp. 366, 369 (E.D. La. 1990) (stating that Louisiana law
requires a condemnor to negotiate in good faith).

Mountain

Valley, on the other hand, references overwhelming authority –

15

including many opinions from district courts in the Fourth
Circuit – that the NGA does not contain a good-faith negotiation
requirement.

(See ECF #208, at 9-11 (citing inter alia, Hardy

Storage Co. v. Property Interests Necessary to Conduct Gas
Storage Operations, No. 2:07CV5, 2009 WL 689054, at *5 (N.D. W.
Va. Mar. 9, 2009); Columbia Gas Transmission Corp. v. An
Easement to Construct, Operate and Maintain a 24-Inch Pipeline,
No. 5:07cv04009, 2008 WL 2439889, at *2 n.4 (W.D. Va. June 9,
2008)).)

These opinions comport with the language of the NGA

and Rule 71.1, which make no reference to good faith.
U.S.C. § 717f(h); Fed. R. Civ. P. 71.1.

See 15

Mountain Valley made

offers to purchase the necessary easements from the defendants,
and whether those offers were in good faith is of little moment
inasmuch as a fair and reasonable award can be adjudicated.

But

see Transwestern Pipeline Co. v. 17.19 Acres of Property Located
in Maricopa Cty., 550 F.3d 770, 776 (9th Cir. 2008) (requiring
the condemnor under the NGA to “establish that it engaged in
good faith negotiations with the landowner” (citation omitted)).
Last, the landowners assert that partial summary
judgment should be denied because Mountain Valley has not yet
posted a sufficient cash deposit to ensure just compensation.
(ECF #205, at 12.)

This assertion is premature inasmuch as the

posting of assurance is a prerequisite to possession, not

16

recognition of the power of eminent domain under the NGA.

See

Sage, 361 F.3d at 824 (citing Cherokee Nation v. S. Kan. Ry.
Co., 135 U.S. 641, 659 (1890)).

Accordingly, the landowners’

remaining arguments are without merit. 5
It is undisputed (1) that Mountain Valley holds a
certificate, (2) that the property interests Mountain Valley
seeks to condemn are necessary for its FERC-approved project,
and (3) that Mountain Valley has unsuccessfully negotiated the
purchase of those property interests with the landowners.
Partial summary judgment of Mountain Valley’s power of eminent
domain as conferred by the NGA is granted.

IV. Preliminary Injunction Granting Immediate Possession

A. Separation of Powers and the Court’s Inherent Equitable
Power

The landowners argue that an award of immediate
possession violates separation of powers principles.

5

(ECF #155,

One additional argument bears mentioning here. Landowner
Mountain Lair, LLC, (“Mountain Lair”) claimed that Mountain
Valley represented to it that the pipeline could not be built
along the approved easement route across its property. (ECF
#206, at 4-5.) Mountain Valley replied that it intends to build
the pipeline on the approved route. (ECF #208, at 8.) At the
February 7 hearing, both parties confirmed Mountain Valley’s
position, and Mountain Lair withdrew its argument on this point.
17

at 10-14; ECF #202, at 8; ECF #206, at 5-15.)

In short, the

landowners’ argument proceeds that immediate possession in a
condemnation action is essentially a quick take, 40 U.S.C. §
3114; the NGA does not authorize gas companies to condemn
property via quick take, see generally 15 U.S.C. § 717 et seq.;
thus, judicial authorization of a quick take under the NGA
violates separation of powers principles because doing so
assumes the powers of the legislature.

The defendants heavily

rely upon the Seventh Circuit’s opinion in Northern Border
Pipeline Co. v. 86.72 Acres of Land, 144 F.3d 469 (7th Cir.
1998), insisting that the Seventh Circuit denied immediate
possession because Congress did not make quick take power
available under the NGA.
Alternatively, the defendants argue that this court
should not needlessly exercise its inherent equitable powers to
authorize immediate possession where an adequate remedy at law
already exists under the NGA – normal condemnation proceedings.
(ECF #206, at 18-19.)

The defendants look for support in

Transwestern Pipeline Co. v. 9.32 Acres, More or Less, of
Permanent Easement Located in Maricopa County, 550 F.3d 770 (D.
Ariz. 2008), aff’d sub nom., Transwestern Pipeline Co. v. 17.19
Acres, 550 F.3d 770.

18

Furthermore, the defendants insist that while Sage
authorizes immediate possession where condemnation authority has
been entered by a court, Sage did not consider a separation of
powers argument.

(ECF #206, at 9-10.)

As a result, the

defendants ask the court to discard Sage in the separations of
powers analysis.
As an initial matter, the landowners’ reading of
Northern Border and the district court opinion in Transwestern
Pipeline is dubious.

First, the corresponding appellate opinion

for Transwestern Pipeline casts a stark shadow over the
landowners’ separation-of-powers and inherent-equitable-power
arguments.

There, the Ninth Circuit concluded

that the substantive right to condemn under § 717f(h)
of the NGA ripens only upon the issuance of an order
of condemnation. At that point, the district court
may use its equitable powers to grant possession to
the holder of a . . . certificate if the gas company
is able to meet the standard for issuing a preliminary
injunction.
550 F.3d at 778.

In other words, if a certificate holder

obtains summary judgment of its power of eminent domain –
Mountain Valley has received such relief herein – then the
holder is entitled to a preliminary injunction granting it
immediate possession, provided it could satisfy the preliminary
injunction factors and ensure just compensation.

Additionally,

the Ninth Circuit recognized that district courts in the Seventh

19

Circuit have read Northern Border to allow a “grant[ of]
possession to gas companies only following judgments of
condemnation.”

Id. at 777.

Accordingly, the cases upon which

the landowners rely hardly provide them any support.
Moreover, the Fourth Circuit has already spoken on
separation of powers in the context of immediate possession and
the NGA.

In Columbia Gas Transmission, LLC v. 76 Acres, More or

Less, in Baltimore and Harford Counties, the Fourth Circuit
stated the following:
The Landowners argue that Sage is distinguishable
because it did not mention the words “separation of
powers.” However, we stated that “the Constitution
does not prevent a condemnor from taking possession of
property before just compensation is determined and
paid.” Sage, 361 F.3d at 824. In addition, we
rejected the Sage landowners' argument “that only
Congress can grant the right of immediate possession.”
Id. Because we are bound to follow this Court's
published opinions, Stahle v. CTS Corp., 817 F.3d 96,
100 (4th Cir. 2016), Sage would require us to reject
the Landowners' claim . . . .
701 F. App’x 221, 231 n.7 (4th Cir. 2017).

Columbia Gas

Transmission v. 76 Acres, while unpublished, is highly
persuasive since it directly addresses the argument made by the
defendants here: Sage is binding, and it does not violate
separation of powers.

Accord Columbia Gas Transmission, LLC v.

252.071 Acres, More or Less, in Baltimore Cty., No. ELH-15-3462,
2016 WL 1248670, at *10-12 (D. Md. Mar. 25, 2016).

Thus,

consideration of Mountain Valley’s request for immediate
20

possession by way of a preliminary injunction does not violate
separation of powers principles, nor does it run awry of the
court’s inherent equitable powers.

B. Governing Standard

“A preliminary injunction is an extraordinary remedy
afforded prior to trial at the discretion of the district court
that grants[,] . . . on a temporary basis, the relief that can
be granted permanently after trial[.]”

The Real Truth About

Obama, Inc. v. FEC, 575 F.3d 342, 345 (4th Cir. 2009), vacated
on other grounds, Citizens United v. FEC, 558 U.S. 310 (2010),
aff’d, 607 F.3d 355 (4th Cir. 2010) (per curiam).

The party

seeking the preliminary injunction must
demonstrate that (1) they are likely to succeed on the
merits, (2) they are likely to suffer irreparable
harm, (3) the balance of hardships tips in their
favor, and (4) the injunction is in the public
interest.
Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (citing
Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20
(2008)).

All four elements must be established by “a clear

showing” before the injunction will issue.
Obama, 575 F.3d at 347.

Real Truth About

Further, “[m]andatory preliminary

injunctions do not preserve the status quo and normally should
be granted only in those circumstances when the exigencies of

21

the situation demand such relief.”

Sage, 361 F.3d at 828

(quoting Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980),
and citing In re Microsoft Corp. Antitrust Litig., 333 F.3d 517,
525 (4th Cir. 2003), abrogated on other grounds, eBay Inc. v.
MercExchange, LLC, 547 U.S. 388 (2006)) (alteration in
original).

C. Discussion

The court finds it pertinent to note, at the outset of
this discussion, that the two other district courts presiding
over Mountain Valley’s companion condemnation actions have
already granted Mountain Valley’s request for a preliminary
injunction under virtually identical circumstances.

See

Mountain Valley Pipeline, LLC v. Simmons, No. 1:17CV211, 2018 WL
701297, at *12-19 (N.D. W. Va. Feb. 2, 2018) (Keeley, J.);
Mountain Valley Pipeline, LLC v. Easements to Construct, Operate
and Maintain a Nat. Gas Pipeline Over Tracts of Land in Giles
Cty., No. 7:17-cv-00492, 2018 WL 648376, at *12-19 (W.D. Va.
Jan. 31, 2018) (Dillon, J.).

The court’s search of the NGA case

law suggests that the district courts accord with that result.
See, e.g., Dominion Carolina Gas Transmission, LLC v. 1.169
Acres, in Richland Cty., 218 F. Supp. 3d 476 (D.S.C. 2016);
Rover Pipeline, LLC v. Rover Tract No(s) WV-DO-SHB-011.510-ROW-

22

T, No. 1:17CV18, 2017 WL 5589163 (N.D. W. Va. Mar. 7, 2017)
(Keeley, J.); Columbia Gas Transmission, LLC v. 252.071 Acres,
More or Less, in Baltimore Cty., No. ELH-15-3462, 2016 WL
1248670 (D. Md. Mar. 25, 2016); Columbia Gas Transmission, LLC
v. 0.85 Acres, More or Less, in Harford Cty., No. WDQ-14-2288,
2014 WL 4471541 (D. Md. Sept. 8, 2014); Transcon. Gas Pipe Line
Co. v. Permanent Easement Totaling 2.322 Acres, No. 3:14-cv00400-HEH, 2014 WL 4365476 (E.D. Va. Sept. 2, 2014); Columbia
Gas Transmission, LLC v. 76 Acres More or Less, in Baltimore and
Harford Counties, No. ELH-14-0110, 2014 WL 2960836 (D. Md. June
27, 2014), aff’d, vacated in part on other grounds, remanded,
701 F. App’x 221 (4th Cir. 2017).
The court recognizes the paradox that the NGA
presents, that relief as extraordinary as a preliminary
injunction is granted so ordinarily.

Indeed, the court

questions the providence of a statutory and regulatory system
that scrutinizes litigants with such rigor and precision over
the course of years, before passing them to the district courts
in a race against the clock – Mountain Valley’s certificate
expires in three years, and the FERC approval process evidently
encourages, if not requires, applicants to prove a market by
entering into shipping agreements prior to certificate issuance
– to obtain relief that is supposed to be rarely granted.

23

As far as the court can tell, however, the
circumstances presented by an NGA condemnation and immediate
possession action appear to be nearly uniform.

Such uniformity

is doubtlessly the designed product of the practicalities of
constructing a natural gas pipeline combined with the finelywrought procedures before FERC.

Perhaps, then, it makes sense

that the results would also be the same.

And based on the

record here, there are no unique circumstances that would place
Mountain Valley outside the ambit of those cases.

Thus, for

reasons stated below, the court finds that Mountain Valley has
successfully demonstrated the four preliminary injunction
elements, and Mountain Valley’s motion for a preliminary
injunction granting it immediate possession of the landowners’
property interests is granted.
First, the court has already determined on the merits
that Mountain Valley has the right to condemn the landowners’
property interests.

“Success on the merits for [Mountain

Valley] is therefore apparent.”

Sage, 361 F.3d at 830. 6

6

The landowners argue that Sage is of lesser import here because
it was decided under the Blackwelder standard for preliminary
injunctive relief, which was abrogated by Winter. (ECF #202, at
12-14; ECF #206, at 15-16.) Under the Blackwelder standard,
preliminary injunction requests were evaluated according to the
“balance-of-the-hardship test,” whereby a movant faced a
generally more lenient standard for obtaining relief. See Real
Truth About Obama, 575 F.3d at 346-47. As written, however,
24

Second, Mountain Valley must clearly demonstrate that
it is likely to suffer irreparable harm absent relief.

Robert

J. Cooper, Mountain Valley’s Senior Vice President of
Engineering and Construction and “company-wide leader for the
[pipeline] project,” described Mountain Valley’s irreparable
harm as follows:
12. [Mountain Valley] needs access to the permanent
and exclusive rights-of-way, access road rights-ofway, temporary construction rights-of-way, and
temporary workspace rights-of-way across the
Landowners’ properties by February 1, 2018 to begin
construction activities in order to safely and
effectively accomplish the [project] on schedule.
13. [Mountain Valley] plans to construct the pipeline
and place it into service by December 2018.
. . .
24. If [Mountain Valley] is unable to begin the tree
clearing and construction activities of the [project]
on the Landowners’ properties by February 1, 2018, it
will be unable to complete the work according to its
construction schedule, and it will incur additional
delay fees and contractor costs.
25. [Mountain Valley] has contractual requirements to
begin clearing activities in February 2018. [Mountain
Valley] also must comply with administrative agency
regulations of the United States Fish and Wildlife
Service requiring that certain clearing be complete by
March 31, 2018, and that construction of roads be
Sage suggests that it would pass muster under the Winter
standard, although that cannot be said with certainty.
Nevertheless, the post-Winter district courts in the Fourth
Circuit, cited supra, continue to treat Sage as at least highly
persuasive, if not dispositive, and the outcomes in those cases
mirror Sage as well. In any event, the court has read and
applied Sage here in light of the proper standard for
preliminary injunctive relief.
25

complete by March 31, 2018. If construction is
delayed, [Mountain Valley] will be unable to comply
with those contractual requirements, and agency
approvals and permits, and may be subject to fines and
will incur damages.
26. [Mountain Valley] also has agreements in place to
begin shipping gas in 2018.
. . .
28. Delaying the [project] will unnecessarily postpone
the public benefits that the pipeline will provide and
unnecessarily increase the costs of completing the
work and result in the loss of substantial revenue to
[Mountain Valley].
(Cooper Construction Decl. ¶¶ 3, 12-13, 24-26, 28.)

Mr. Cooper

reiterated the effect of these statements at the February 7
hearing.

Additionally, Mr. Cooper added that Mountain Valley

will suffer non-economic harms absent relief, such as harm to
its business reputation and goodwill.
Mr. Cooper claimed that Mountain Valley required
possession of the landowners’ property interests by February 1,
2018.

(Id. ¶¶ 12, 24.)

Obviously, that date has passed.

At

the February 7 hearing, Mr. Cooper explained that the passage of
February 1 does not negate Mountain Valley’s need for relief.
Rather, it results in the accrual of extra costs that vary
depending on when access is granted.
Generally, the landowners contend that possession is
not a limiting factor to Mountain Valley’s progress since it
faces legal challenges in other forums and still must satisfy
26

all of the conditions precedent to construction in its
certificate, (ECF #155, at 6-7; ECF #196, at 8; ECF #200, at 23; ECF #202, at 24-25; ECF #205, at 9-10; ECF #206, at 3-4);
that Mountain Valley can build the pipeline in under a year but
has three years from the date of certificate issuance to
complete the pipeline, and Mountain Valley has considered
alternative construction schedules with a later possession date
that nonetheless meets its certificate deadline, (ECF #155, at
6-7; ECF #196, at 9; ECF #202, at 26-28; ECF #205, at 6-10; ECF
#206, at 17); that mere economic harm is insufficient to show
irreparable harm, (ECF #155, at 6-7; ECF #202, at 11-14; ECF
#205, at 9-10); and that Mountain Valley’s measurement of loss
is unrealistic, speculative, and self-inflicted, (ECF #196, at
9; ECF #202, at 15-24; ECF #205, at 6-10; ECF #206, at 17).
At the hearing, the landowners reiterated these themes
and also elicited testimony from Mr. Cooper that Mountain
Valley’s alleged irreparable harms may not be as severe, may be
partially mitigated, and represent only a fraction of Mountain
Valley’s overall $3.7-billion budget.

The landowners could not,

however, establish that the harms would not occur absent relief.
As earlier noted, the case law recognizes that
Mountain Valley’s alleged harms, including economic and noneconomic, are irreparable.

See Sage, 361 F.3d at 829; see also,
27

e.g., Dominion Carolina, 218 F. Supp. 3d at 479-80; Rover
Pipeline, 2017 WL 5589163, at *4.

The courts agree that

Mountain Valley’s economic losses are irreparable because they
cannot be recovered at the end of litigation.

See, e.g., Sage,

361 F.3d at 828-29 (treating the gas company’s economic harms as
irreparable); Columbia Gas Transmission LLC v. 0.85 Acres, 2014
WL 4471541, at *6; cf. Di Biase v. SPX Corp., 872 F.3d 224, 230
(4th Cir. 2017) (“A plaintiff must overcome the presumption that
a preliminary injunction will not issue when the harm suffered
can be remedied by money damages at the time of judgment.”).
Regarding scheduling modifications, the District of
Maryland succinctly stated the following:
It is clear that the lack of a preliminary injunction
would require [the certificate holder] to modify its
construction schedule, deviate from its usual course,
expend additional resources, and jeopardize its
ability to satisfy its obligations under both its
private contracts and its FERC Certificate. It is of
no moment that [the holder] could, in theory,
construct [the pipeline] in a disjointed manner,
temporarily skipping Defendants' parcels of land and
then returning to them after a trial is held in this
case. Such a course of action would be wasteful and
inefficient, and it would serve no purpose other than
to delay the inevitable.
Columbia Gas Transmission, LLC v. 76 Acres, 2014 WL 2960836, at
*15; cf. Sage, 361 F.3d at 828-29.

Next, the court cannot

entertain argument about other pending legal challenges for
reasons earlier stated, namely, that the NGA shows a clear

28

congressional intent that certificates are not stayed absent
specific instruction by FERC or a court of appeals.
U.S.C. § 717r(c).

See 15

And last, the landowners’ concerns about

conditions precedent to construction are unfounded because any
preliminary injunction issued here is merely coextensive to that
which is approved by FERC, nothing more.

Mountain Valley has

thus shown that it will suffer irreparable harm absent relief.
Third, the balance of hardships must tip in Mountain
Valley’s favor for a preliminary injunction to issue.

In Sage,

the Fourth Circuit conclusively spoke on this issue in the
context of NGA condemnation actions.

See also, e.g., Dominion

Carolina, 218 F. Supp. 3d at 480-81.

The Fourth Circuit

explained that threat of condemnation of private property “is
properly treated as part of the burden of common citizenship,”
Sage, 361 F.3d at 829 (quoting Kimball Laundry Co. v. United
States, 338 U.S. 1, 5 (1949)), and that just compensation is
guaranteed by the Fifth Amendment whether property condemned
under the NGA is taken immediately or after a trial, id.

“In

any event, . . . [any] early loss of use . . . is blunted by
[the landowners’] right to draw down the money” that Mountain
Valley has indicated it is willing to deposit as assurance for
the taking.

Id. (internal quotations omitted and last

alteration in original).

29

Fourth, granting Mountain Valley’s request for a
preliminary injunction must be in the public interest.

Again,

Sage’s conclusion on the public interest is dispositive here.
In Sage, the Fourth Circuit determined that a certificate is
imbued with the public interest pursuant to the authority
granted under the NGA.

Id. at 830 (“Congress passed the [NGA]

and gave gas companies condemnation power to insure that
consumers would have access to an adequate supply of natural gas
at reasonable prices. . . .

FERC conducted a careful analysis

of the [project] and determined that the project will promote
these congressional goals and serve the public interest.”
(citations omitted)); see also, e.g., Columbia Gas Transmission,
LLC v. 252.071 Acres, 2016 WL 1248670, at *17.
Accordingly, Mountain Valley’s motion for a
preliminary injunction granting it possession of the condemned
property interests is granted.

V. Posting of Deposit and Security

Although Mountain Valley has made the requisite
showing for a preliminary injunction, it must fulfill an
additional requirement before taking immediate possession of the
landowners’ property interests.

The Fourth circuit holds that

30

the Constitution does not prevent a condemnor from
taking possession of property before just compensation
is determined and paid. As the Supreme Court said a
long time ago, the Constitution “does not provide or
require that compensation be paid in advance of the
occupancy of the land to be taken. But the owner is
entitled to reasonable, certain, and adequate
provision for obtaining compensation before his
occupancy is disturbed.”
Sage, 361 F.3d at 824 (quoting Cherokee Nation, 135 U.S. at
659).

The Fourth Circuit in Sage found that “adequate

assurance” of just compensation had been provided because the
condemnor “deposited cash with the court in an amount equal to
the appraised value of the interests condemned[, and, i]f the
deposit [was] somehow short, [the condemnor would] be able to
make up the difference” based upon its substantial assets and
its ability to be sued by any aggrieved parties.

Id.

At the February 7 hearing, Mountain Valley proffered
the expert testimony of Todd Goldman, a licensed appraiser hired
by Mountain Valley to perform preliminary appraisal work on the
landowners’ property interests.

His preliminary appraisal

report and valuations were admitted into evidence as Plaintiff’s
Exhibits 7 and 8.
The landowners did not provide valuations though it is
their ultimate burden to do so at trial.

See United States v.

69.1 Acres of Land, More or Less, Situated in Platt Springs
Twp., 942 F.2d 290, 292 (4th Cir. 1991) (citing United States ex
31

rel. TVA v. Powelson, 319 U.S. 266, 274 (1943)).

Instead, the

landowners focused on discrediting Mr. Goldman’s appraisals.

On

cross examination, the landowners elicited testimony from Mr.
Goldman in an effort to cast doubt on his methodology and on the
compliance of his report with professional standards.
#221, at 24-78.)

(See ECF

The landowners’ rebuttal expert, Russel D.

Rice, also a licensed appraiser, echoed that sentiment in his
own declaration and report, filed February 13, 2018, pursuant to
the court’s directive.

(See ECF #224.)

Specifically, Mr. Rice

believes that omissions in Mr. Goldman’s report “fatally erode
[its] credibility” and that just compensation cannot be known
without “adequate time for a field inspection and evaluation of
all elements of the subject appraisal.”

(ECF #224 Ex. A, at

13.)
Assuming that the landowners’ and Mr. Rice’s
criticisms are well-founded, the criticisms do not squarely
address the immediate issue.

Determination of the fixed and

definite amount of just compensation is the guaranteed outcome
of a condemnation action, see Lingle v. Chevron U.S.A. Inc., 544
U.S. 528, 536-37 (2005), whereas, at this point, the court need
only set a deposit amount that ensures just compensation
ultimately will be paid once the issue has been thoroughly
investigated, see Sage, 361 F.3d at 824 (stating, as noted, that

32

“the Constitution does not prevent a condemnor from taking
possession of property before just compensation is determined
and paid” so long as the condemnees receive “adequate assurance”
that just compensation will be paid).

The landowners would have

just compensation fully litigated prior to the issuance of the
preliminary injunction.

Of course, doing so would defeat the

purpose of immediate relief.
In Sage, the Fourth Circuit was apparently satisfied
that it could set appropriate assurance based upon the
condemnor’s deposit of cash in the amount equaling its appraised
values of the interests condemned.

361 F.3d at 824.

Thus, to

the extent that Sage indicates that there is a burden on
Mountain Valley to provide an estimate of value at this
juncture, Mountain Valley has carried that burden such that the
court has a baseline against which to properly fix the amount of
the deposit that Mountain Valley must provide prior to taking
possession of the landowners’ property interests.
The court is not, however, satisfied with Mountain
Valley’s estimation.

The landowners and Mr. Rice have raised

legitimate concerns over Mr. Goldman’s appraisals.

Mr.

Goldman’s testimony on cross examination revealed as much, as
does Mr. Rice’s rebuttal.

33

Additionally, although Mr. Goldman valued a number of
property interests at less than $3,000, Mr. Cooper states, as
earlier noted, that Mountain Valley offered at least $3,000 for
every property interest in this action.
Decl. ¶ 8.)

(Cooper Construction

The court notes similar divergences in value in two

other instances.

First, Mr. Goldman appraised landowner Paco

Land, Inc.’s (“Paco Land”) property interests at $20,600 (Pl’s
Ex. 8), while the offer that Mountain Valley evidently made for
the same according to Paco Land’s answer was $150,000 (ECF #118,
at 6).

Second, although Mr. Goldman appraised landowner Western

Pocahontas Properties Limited Partnership’s (“WPPLP”) property
interests at $20,200 (Pl’s Ex. 8), WPPLP’s general partner,
Gregory F. Wooten, swears that the value of its property
interests “with respect to the pipeline right of way only” are
valued at $457,002 including “near-surface coal” that will be
“d[ug] and damage[d]” by the pipeline.

(Affidavit of Gregory F.

Wooten ¶¶ 11, 18.)
The court cannot speculate as to Mountain Valley’s
rationale underlying these offers, nor does the court know the
extent of the interests that Mountain Valley attempted to
purchase.

Particularly, in the case of Paco Land, it is unknown

whether Mountain Valley’s offer included any consideration for
Paco Land’s insistence that it would lose the use of an entire

34

151.02-acre tract as a result of the approximately 7.56-acre
easement.

(See id. at 3-6.)

The court has recited these

examples because it finds them probative of the accuracy of
Mountain Valley’s appraisal.
Moreover, the court is concerned about the remarkably
few landowners from whom Mountain Valley has purchased the
necessary easements.

It was revealed at the February 7 hearing

that Mountain Valley had purchased around only 60% of the
necessary easements in the Southern District of West Virginia.
Meanwhile, Mountain Valley had purchased around 85% of the
easements overall in all three districts, sometimes in excess of
90% in certain counties.
Accordingly, while the court accepts Mountain Valley’s
proffer of valuation as a basis for estimating the deposit, the
court does not find the valuation sufficient to ensure that just
compensation will be paid.

The court directs the following:

1. Before taking possession, Mountain Valley must deposit with
the Clerk a certified or cashier’s check in the amount of four
times the appraised value according to Mr. Goldman.

Provided,

however, that for any property interests appraised at $3,000 or
less, Mountain Valley must assume that the appraised value is
actually $3,001 and adjust its deposit accordingly.

35

2. Before taking possession, Mountain Valley must post a surety
bond in the amount of two times the appraised value according to
Mr. Goldman.

Again, for any property interests appraised at

$3,000 or less, Mountain Valley must assume that the appraised
value is actually $3,001 and adjust its surety bond accordingly.
The surety bond requirement is in keeping with Federal Rule of
Civil Procedure 65(c), which requires that the moving party must
“give[] security in an amount that the court considers proper to
pay the costs and damages sustained by any party found to have
been wrongfully enjoined or restrained” before a preliminary
injunction may issue.
3. The Clerk is directed to deposit the funds from Mountain
Valley’s certified or cashier’s check pursuant to Federal Rule
of Civil Procedure 67 and 28 U.S.C. § 2041.
4. Each landowner is entitled to draw upon Mountain Valley’s
deposit pursuant to Federal Rule of Civil Procedure 67 and 28
U.S.C. § 2042.

To withdraw on the deposit, a landowner must

file with the court a Motion to Withdraw Funds.

The Motion must

identify the parcel identification tag as labeled by Mountain
Valley in Exhibit C of the Complaint, list any other individuals
or entities sharing ownership in the property interest
condemned, and be accompanied by proof of service of the Motion
on each such co-owner.

Each landowner is entitled to draw upon
36

the greater of Mountain Valley’s appraised value or $3,001, and
each landowner is entitled only to the landowner’s proportionate
share of the property interest.

The landowners are forewarned

that, should the value of just compensation owed to them
ultimately be less than what they withdrew, they will be liable
to Mountain Valley for the balance, with interest.
5. Each landowner is entitled to draw upon Mountain Valley’s
deposit in an additional amount if an appraised value is
provided that is greater than Mountain Valley’s appraised value
and the court grants the motion next noted.

To do so, a

landowner must file with the court a Motion to Withdraw
Appraised Funds, which must include a statement from an
appraiser as to value and must also comply with the same
requirements as a Motion to Withdraw Funds.

Again, the

landowners are forewarned that, should the value of just
compensation owed to them ultimately be less than what they
withdrew, they will be liable to Mountain Valley for the
balance, with interest.
6. Any objections to a Motion to Withdraw Funds or a Motion to
Withdraw Appraised Funds - whether by Mountain Valley, a
landowner, or a non-party to this action - must be made within
seven days of receipt of service of the Motion or twenty-one

37

days of the Motion’s filing with the court, whichever is
earlier.

VI. Conclusion

For the foregoing reasons, it is ORDERED that:
1. Mountain Valley’s motions to strike be, and hereby are,
granted;
2. The landowners’ motions to dismiss be, and hereby are, denied
as stricken;
3. The landowners’ motion for stay of proceedings be, and hereby
is, denied; and
4. Mountain Valley’s motion for partial summary judgment and
immediate access to and possession of the easements condemned in
Nicholas, Greenbrier, Summers, and Monroe Counties, West
Virginia, be, and hereby is, granted.
Further, the court directs Mountain Valley to post the deposit
and security as directed, which is a predicate to Mountain
Valley’s right to possess the condemned property.

38

02/22/2016

Scheduling conference at 4:30 p.m. at the Robert C.
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
directed to appear.

02/29/2016

Entry of scheduling order.
The Clerk is directed to forward copies of this
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) disclosures.
memorandum opinion and order to all counsel of record and to any
The Clerk is requested to transmit this Order and
unrepresented parties.
Notice to all counsel of record and to any unrepresented
parties.

ENTER: February 21, 2018
DATED: January 5, 2016
John T. Copenhaver, Jr.
United States District Judge

39