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
560
MEMORANDUM OPINION AND ORDER directing that the 482 Motion for Summary Judgment is granted in part and denied in part as follows: the motion is granted as to defendants Doreen S. Allen, Fredereck M. Osborne, Jo Lynn Blankenship, Mickey D. Osborne, and Scott S. Osborne, MVP is directed to pay $4,600.00 to these defendants, plus prejudgment interest on this amount at the rate of 2.1% per annum; the motion as to Robert Jackson Holt is denied as moot; the motion as to defendant David R. Hughes is granted, MVP is directed to pay $4,600.00 to David R. Hughes, plus prejudgment interest on this amount at the rate of 2.1% per annum; the motion as to the heirs of J.H. Harrah (including among others Ira Harrah, Brenda Persinger, and Doris Sanford) is granted, MVP is directed to pay $35,500.00 to these defendants, plus prejudgment interest on this amount at the rate of 2.1% per annum; the motion as to Johnnie Ray Keener, Brande Nicole Keener, and David Harmon, is gr anted, MVP is directed to pay $4,543.74 to these defendants, plus prejudgment interest on this amount at the rate of 2.1% per annum; the motion as to the unknown heirs of Martha I. Kessler, the unknown heirs of Mary L. Surbaugh, the unknown heirs of Nora E. Vandall, the unknown heirs of Azel Ford Zickafoose, the unknown heirs of Joseph Orville Zickafoose, and the unknown heirs of Robert C. Zickafoose is granted, MVP is directed to pay $9,559.95 to these defendants, with each set o f the six sets of heirs above having an equal one-sixth interest therein, plus prejudgment interest on this amount at the rate of 2.1% per annum. Signed by Senior Judge John T. Copenhaver, Jr. on 8/21/2020. (cc: counsel of record; any unrepresented parties) (kew)
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
(“MVP”) motion for summary judgment as to defendants (1) Doreen
S. Allen; (2) Fredereck M. Osborne; (3) Jo Lynn Blankenship; (4)
Mickey D. Osborne; (5) Scott S. Osborne; (6) Robert Jackson
Holt; (7) David R. Hughes; (8) heirs of J.H. Harrah; (9) Ira
Harrah; (10) Brenda Persinger; (11) Doris Sanford; (12) Johnnie
Ray Keener; (13) Brande Nicole Keener; (14) David Harmon; (15)
Estate of C.L. Keener; (16) unknown heirs of Martha I. Kessler;
(17) unknown heirs of Mary L. Surbaugh; (18) unknown heirs of
Nora E. Vandall; (19) unknown heirs of Azel Ford Zickafoose;
(20) unknown heirs of Joseph Orville Zickafoose; and (21)
unknown heirs of Robert C. Zickafoose, filed November 18, 2019.
I. Background
On October 13, 2017, the Federal Energy Regulatory
Commission issued MVP a certificate of public convenience and
necessity, authorizing MVP to construct and operate a 303.5mile-long, 42-inch diameter pipeline from Wetzel County, West
Virginia, to Pittsylvania County, Virginia.
Pl.’s Mem. of Law
in Supp. of Mot. for Summ. J. 3 (“Pl.’s Mem.”), ECF No. 483, Ex.
1.
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.
Since MVP could not obtain all the necessary easements
by agreement, MVP initiated this action in this court on October
24, 2017, pursuant to the Natural Gas Act, 15 U.S.C. § 717f(h)
and Federal Rule of Civil Procedure 71.1.
Pl.’s Mem. 3.
MVP
condemned easements across the properties owned by the
defendants.
Pl.’s Mem. 3-4.
On October 27, 2017, MVP filed a motion for partial
summary judgment and immediate access to and possession of the
easements condemned for construction of the MVP project.
The
court granted MVP’s motion for partial summary judgment on
2
February 21, 2018, leaving as the only issue in the case the
amount of just compensation MVP owes the landowners for the
partial taking of their respective properties.
summary judgment on this sole issue.
MVP now seeks
Responses were due on
December 2, 2019, but the defendants subject to MVP’s motion for
summary judgment did not respond or otherwise participate in the
litigation.
However, on February 13, 2020, the court received a
binder from defendant David R. Hughes containing a letter to the
court, copies of two letters sent to MVP, and a 33-page
memorandum.
The contents of the binder were ordered filed on
April 3, 2020.
See ECF Nos. 546, 547.
Although the binder was
received well after the response deadline, the court treats the
binder as though it were timely filed and will consider its
contents.
II. Standard of Review
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).
“Material” facts are those necessary to
establish the elements of a party’s cause of action.
Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010).
A “genuine” dispute of material fact
3
exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party.
Anderson, 477 U.S. at 248.
Inferences that
are “drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
“A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by showing . . .
that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(B).
“Rule 56(c)
mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”
Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
III. Discussion
The issue before the court is the amount of just
compensation due to the defendants for their respective
interests in the property taken by MVP.
4
“‘Just compensation’ is that amount of money necessary
to put a landowner in as good a pecuniary position, but no
better, as if his property had not been taken.”
United States
v. 69.1 Acres of Land, 942 F.2d 290, 292 (4th Cir. 1991).
“[I]t
is well settled that in the event of a ‘partial taking’ -- i.e.,
a case in which the [condemnor] has taken one part of a larger
tract, leaving the remainder to the landowner
-- the measure of
just compensation is the difference between the fair and
reasonable market value of the land immediately before the
taking and the fair and reasonable market value of the portion
that remains after the taking.”
United States v. Banisadr Bldg.
Joint Venture, 65 F.3d 374, 378 (4th Cir. 1995) (citations
omitted).
In the event of a temporary taking, “the value of the
taking is what rental the marketplace would have yielded for the
property taken.”
Id.
“The burden of proving the value of the land taken is
on the landowner.”
69.1 Acres of Land, 942 F.2d at 292 (citing
United States v. Powelson, 319 U.S. 266, 274 (1943)).
However, “if the condemnor is the only party to admit
evidence to the Court of the value of the real property
taken, the Court may use that evidence to determine the
just compensation of the property and enter default
judgment against defendant landowners and award the
defendants their just compensation as determined by the
condemnor.”
5
Dominion Energy Transmission, Inc. v. 2.21 Acres of Land, No.
1:18CV25, 2020 WL 127985, at *2 (N.D. W. Va. Jan. 10, 2020)
(quoting Atl. Coast Pipeline, LLC v. 1.52 Acres, No. 3:17-cv814, 2019 WL 148402, at *7 (E.D. Va. Jan. 9, 2019)).
MVP argues that the court should award defendants
nominal damages because the “landowners have failed to submit
evidence to demonstrate the amount of just compensation they are
owed[,]” and the defendants “have the burden of proof to
demonstrate just compensation[.]”
Pl.’s Mem. 10 (citing Nature
Conservancy v. Machipongo Club, Inc., 419 F. Supp. 390, 405
(E.D. Va. 1976)).
However, the court declines MVP’s request to
award only nominal damages because the court has evidence before
it of value, submitted by MVP, which will suffice in this
instance.
Inasmuch as none of these landowners has expressed a
value for these properties, the court is limited to the only
evidence available, which has been provided by MVP’s expert,
Todd Goldman (“Goldman”).
In David R. Hughes’ filing, he recounts a thorough
explanation of his property, including the existence of four
cabin sites built in the 1800s that he planned to restore with
lumber that was allegedly destroyed with the construction of the
pipeline.
In addition, Hughes explains his plans to develop and
reopen a county road that would allow access to the cabins.
6
Hughes claims that he can no longer carry out his plans due to
the construction of the pipeline.
However, Hughes does not
present evidence to the court of the value of the real property
taken.
A. Just Compensation for the Allen/Osborne Landowners
According to MVP’s expert and certified appraiser,
Goldman, the property owned by Doreen S. Allen, Fredereck M.
Osborne, Jo Lynn Blankenship, Mickey D. Osborne, and Scott S.
Osborne (“the Allen/Osborne landowners”) is comprised of 103
acres of land in Rainelle, Greenbrier County, West Virginia.
Todd Goldman Appraisal Report for the Allen/Osborne Property,
ECF No. 482, Ex. 10, at 5.
The land contains a single-family
residence totaling 2,200 square feet as well as multiple
agricultural buildings and a barn.
Id.
The property is now
encumbered by MVP’s “permanent and temporary access right-ofway” easement totaling 0.85 acres.
Id.
The access right-of-way
easement is a 40-foot-wide roadway, which includes a 25-foot
permanent easement and a 15-foot temporary easement.
Id. at 7.
Goldman determined that the fair market value of the property
before the taking was $225,000.00, and the fair market value of
the property after the taking is $220,400.00.
Id. at 6.
Accordingly, Goldman determined that the diminution in fair
market value as a result of the taking is $4,600.00, allocating
7
$446.25 for the value of the take and $4,153.75 for the value of
the diminution of the remainder parcel after the partial taking.
Id.
Because the Allen/Osborne landowners own 100% interest in
the underlying property, they are entitled to $4,600.00.
B. Just Compensation for Robert Jackson Holt
On July 31, 2020, MVP filed a notice of voluntary
dismissal, dismissing its claims as to Robert Jackson Holt and
stating that the parties had reached agreements on just
compensation.
See ECF No. 551.
Due to this voluntary
dismissal, MVP’s motion for summary judgment as to defendant
Robert Jackson Holt is denied as moot.
C. Just Compensation for David R. Hughes
While Hughes expresses an endearing interest in the
property, including its interesting history and what had been
his plans for the future, he does not express or propose any
estimates of the value of that being taken.
According to Goldman, the property owned by David R.
Hughes is comprised of 116.64 acres of land in Lindside, Monroe
County, West Virginia.
Todd Goldman Appraisal Report for the
Hughes Property, ECF No. 482, Ex. 12, at 5.
improvements on the property.
Id.
8
There are no
The property is now
encumbered by MVP’s permanent pipeline easement totaling 0.36
acres and MVP’s temporary workspace easement totaling 0.35
acres.
Id.
Goldman determined that the fair market value of
the property before the taking was $221,600.00, and the fair
market value of the property after the taking is $217,000.00.
Id. at 6.
Accordingly, Goldman determined that the diminution
in fair market value as a result of the taking is $4,600.00,
allocating $883.50 for the value of the take and $3,716.50 for
the value of the diminution of the remainder parcel after the
partial taking.
Id.
The value of the temporary workspace
easement is $199.50, which is included in the value of the take
figure.
Id. at 92.
Because Hughes owns 100% interest in the
underlying property, he is entitled to $4,600.00.
D. Just Compensation for the Harrah Landowners
According to Goldman, the property owned by the heirs
of J.H. Harrah is comprised of 119 acres in Meadow Bridge,
Summers County, West Virginia.
Todd Goldman Appraisal Report
for the Harrah Property, ECF No. 482, Ex. 13, at 5.
The land
contains a single-family residence totaling 1,445 square feet as
well as multiple agricultural buildings, barns, woodsheds, and
chicken houses.
Id.
The property is now encumbered by MVP’s
permanent pipeline easement totaling 3.61 acres and MVP’s
temporary workspace easement totaling 5.16 acres.
9
Id.
Goldman
determined that the fair market value of the property before the
taking was $217,000.00, and the fair market value of the
property after the taking is $181,500.00.
Id. at 6.
Accordingly, Goldman determined that the diminution in fair
market value as a result of the taking is $35,500.00, allocating
$8,510.70 for the value of the take and $26,989.30 for the value
of the diminution of the remainder parcel after the partial
taking.
Id.
The value of the temporary workspace easement is
$2,554.20, which is included in the value of the take figure.
Id. at 95.
The record title owners of the property are the heirs
of J.H. Harrah.
Pl.’s Mem. 15.
During its investigation, MVP
identified Ira Harrah, Brenda Persinger, and Doris Sanford as
individuals holding an interest in the property.
Pl.’s Mem. 15.
However, according to MVP, “[t]here are a number of other
landowners who claim an interest as heirs of J.H. Harrah or
otherwise hold an interest in the property.”
Pl.’s Mem. 16.
The just compensation for the partial takings on the Harrah
Landowners’ property is $35,500.00.
10
E. Just Compensation for the Keener/Harmon Landowners
According to Goldman, the property owned by the C.L.
Keener heirs is comprised of 1.65 acres in Quinwood, Greenbrier
County, West Virginia.
Todd Goldman Appraisal Report for the
Keener Property, ECF No. 482, Ex. 14, at 5.
improvements on the property.
Id.
There are no
The property is now
encumbered by MVP’s permanent pipeline easement totaling 0.21
acres and MVP’s temporary workspace easement totaling 0.33
acres.
Id.
Goldman determined that the fair market value of
the 100% interest in the property before the taking was
$10,200.00, and the fair market value after the taking is
$2,550.00.
Id. at 6.
Accordingly, Goldman determined that the
diminution in fair market value as a result of the taking is
$7,650.00, allocating $1,915.80 for the value of the take and
$5,734.20 for the value of the diminution of the remainder
parcel after the partial taking.
Id.
The value of the
temporary workspace easement is $613.80, which is included in
the value of the take figure.
Id. at 95.
During its investigation, MVP identified a number of
potential heirs of C.L. Keener that hold an interest in the
property.
Pl.’s Mem. 17.
A number of these identified
potential heirs have signed easements with MVP and have been
paid compensation by MVP.
Pl.’s Mem. 17.
11
At the time of
filing, MVP acquired easements from and paid compensation to
landowners comprising 40.6047% of the total ownership.
Mem. 17.
Pl.’s
MVP has also identified Johnnie Ray Keener, Brande
Nicole Keener, and David Harmon (the “Keener/Harmon Landowners”)
as C.L. Keener heirs who have not settled with MVP.
17.
Pl.’s Mem.
Presumably, 59.3953% of just compensation is owed to
Johnnie Ray Keener, Brande Nicole Keener, and David Harmon.
The
just compensation for the partial takings on the Keener/Harmon
Landowners’ property is $4,543.74.
F. Just Compensation for the Zickafoose Landowners
According to Goldman, the property owned in part by
the unknown heirs of Martha I. Kessler, the unknown heirs of
Mary L. Surbaugh, the unknown heirs of Nora E. Vandall, the
unknown heirs of Azel Ford Zickafoose, the unknown heirs of
Joseph Orville Zickafoose, and the unknown heirs of Robert C.
Zickafoose (“the Zickafoose Landowners”) is comprised of 64.52
acres in Meadow Bridge, Greenbrier County, West Virginia, in
which each set of the six sets of heirs above owns a 6.24833333%
interest.
Todd Goldman Appraisal Report for the Zickafoose
Property, ECF No. 482, Ex. 15, at 5-6.
mobile home on the property.
Id. at 5.
There is a single-wide
The property is now
encumbered by MVP’s permanent pipeline easement totaling 2.08
acres, temporary workspace easement totaling 2.84 acres,
12
additional temporary workspace easement totaling 1.23 acres, and
“temporary/permanent” access right-of-way easement totaling 0.08
acres.
Id. at 6.
The access right-of-way easement is a 40-
foot-wide roadway, which includes a 25-foot permanent easement
and a 15-foot temporary easement.
Id. at 7.
Goldman determined
that the fair market value of the 100% interest in the property
before the taking was $127,500.00, and the fair market value
after the taking is $102,000.00.
Id.
Accordingly, Goldman
determined that the diminution in fair market value as a result
of the taking is $25,500.00, allocating $5,320.00 for the value
of the take and $20,180.00 for the value of the diminution of
the remainder parcel after the partial taking.
Id.
of the temporary workspace easement is $1,363.20.
The value
Id. at 104.
The value of the additional temporary workspace easement is
$590.40.
Id.
The value of the temporary/permanent access
right-of-way easement is $38.40.
Id.
The values for the
temporary workspace easement, the additional temporary workspace
easement, and the temporary/permanent access right-of-way are
included in the value of the take figure.
Id.
MVP was able to identify a number of landowners “who
claim an interest as Zickafoose heirs or otherwise hold an
interest in the property” that subsequently signed easements
with MVP and have been paid compensation by MVP.
13
Pl.’s Mem. 18.
At the time of filing, MVP acquired easements from and paid
compensation to landowners comprising 62.51% of the total
ownership.
Pl.’s Mem. 18.
Presumably, 37.49% of just
compensation is owed to these remaining partial interest owners.
The just compensation for the partial takings on the Zickafoose
Landowners’ property is $9,559.95.
G. Prejudgment Interest
The defendants are also entitled to prejudgment
interest on the amount of just compensation from the date of the
taking, October 24, 2017, to the date of the judgment, August
21, 2020.
See United States v. Eltzroth, 134 F.3d 632, 638 (4th
Cir. 1997) (“The date of taking ‘fixes the date as of which the
land is to be valued and the Government’s obligation to pay
interest accrues.’” (quoting United States v. Dow, 357 U.S. 17,
22 (1958))).
“The choice of an appropriate rate of interest is
a question of fact, to be determined by the district court[.]”
Washington Metro. Area Transit Auth. v. One Parcel of Land in
Montgomery Cnty., Md., 706 F.2d 1312, 1322 (4th Cir. 1983).
“Judges in the District have previously observed that, ‘in order
to make the injured parties whole, the prejudgment interest
should reflect the injured party’s borrowing costs.’”
2.21
Acres of Land, 2020 WL 127985, at *3 (citing Dijkstra v.
14
Carenbauer, No. 5:11-CV-152, 2015 WL 12750449, at *7 (N.D. W.
Va. July 29, 2015)).
“Applying this principle, the rate at which
prejudgment interest is to be calculated should reflect the rate
best representing the Defendants' borrowing cost during the
period of the loss of use of the monies owed.
To determine
this, the court will apply the average federal interest rate
from [October 2017].”
Id.
During that time, the federal
interest rates for marketable interest-bearing debt averaged
2.1%.
TreasuryDirect.gov, Average Interest Rates, October 2017,
https://www.treasurydirect.gov/govt/rates/avg/2017/2017_10.htm
(last visited Aug. 14, 2020).
Accordingly, the court will award
prejudgment interest on the amount of just compensation, from
October 24, 2017, to August 21, 2020, to be calculated at the
rate of 2.1% per annum.
IV.
Conclusion
For the foregoing reasons, it is ORDERED that
1.
MVP’s motion for summary judgment as to defendants Doreen S.
Allen, Fredereck M. Osborne, Jo Lynn Blankenship, Mickey D.
Osborne, and Scott S. Osborne is granted, and MVP is directed
to pay $4,600.00 to these defendants, plus prejudgment
interest on this amount at the rate of 2.1% per annum;
15
2.
MVP’s motion for summary judgment as to defendant Robert
Jackson Holt is denied as moot;
3.
MVP’s motion for summary judgment as to defendant David R.
Hughes is granted, and MVP is directed to pay $4,600.00 to
David R. Hughes, plus prejudgment interest on this amount at
the rate of 2.1% per annum;
4.
MVP’s motion for summary judgment as to the heirs of J.H.
Harrah (including among others Ira Harrah, Brenda Persinger,
and Doris Sanford) is granted, and MVP is directed to pay
$35,500.00 to these defendants, plus prejudgment interest on
this amount at the rate of 2.1% per annum;
5.
MVP’s motion for summary judgment as to Johnnie Ray Keener,
Brande Nicole Keener, and David Harmon, is granted, and MVP
is directed to pay $4,543.74 to these defendants, plus
prejudgment interest on this amount at the rate of 2.1% per
annum; and
6.
MVP’s motion for summary judgment as to the unknown heirs of
Martha I. Kessler, the unknown heirs of Mary L. Surbaugh, the
unknown heirs of Nora E. Vandall, the unknown heirs of Azel
Ford Zickafoose, the unknown heirs of Joseph Orville
Zickafoose, and the unknown heirs of Robert C. Zickafoose is
granted, and MVP is directed to pay $9,559.95 to these
16
defendants, with each set of the six sets of heirs above
having an equal one-sixth interest therein, plus prejudgment
interest on this amount at the rate of 2.1% per annum.
The Clerk is directed to forward copies of this
written opinion to all counsel of record and to any
unrepresented parties.
ENTER: August 21, 2020
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