Columbia Gas Transmission, LLC v. 466.19 Acres of Land, More or Less, in Cabell, Jackson, Mason, Putnam, Roane and Wirt Counties, West Virginia et al

Filing 283

ORDER granting 280 Joint Motion for Appointment of Commission; a telephonic status conference will be held on 3/24/2020, at 10:00 a.m. to discuss appointment of a commission. Signed by Judge Thomas E. Johnston on 3/17/2020. (cc: counsel of record; any unrepresented party) (kew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

COLUMBIA GAS TRANSMISSION, LLC,
Plaintiffs,
v.

CIVIL ACTION NO. 2:18-cv-00044

466.19 ACRES OF LAND, MORE OR LESS,
IN CABELL, JACKSON, MASON, PUTNAM,
ROANE, AND WIRT COUNTIES, WEST VIRGINIA; et al.,
Defendants.

ORDER

Pending before the Court is a joint motion for appointment of commission by Plaintiff
Columbia Gas Transmission, LLC’s (“Columbia”) and Defendant Putnam County Development
Authority, Inc. (“PCDA”).

(ECF No. 280.)

For the reasons that follow, the motion is

GRANTED.
In December 2017, the Federal Energy Regulatory Commission issue a certificate of public
convenience and necessity to Columbia, authorizing Columbia to construct and operate a 170.9mile-long natural gas pipeline, compression facilities, and related appurtenances that would run
throughout the state of West Virginia. (ECF No. 1-1.) Plaintiff then filed complaints in Case
No. 2:18-cv-44 (the “Lead Case”) and in Case No. 2:18-cv-42 (the “Companion Case”)
(collectively, the “Consolidated Action”) to condemn the land over which its pipeline would run.
The Court previously granted Columbia’s motion for a preliminary injunction, granting it
immediate access to, and use of, the land after satisfying specified conditions, so that it could begin

the pipeline construction in accordance with the FERC-approved construction schedule and
deferred the issue of the landowners’ just compensation. (ECF No. 217.) Columbia and the
PCDA now jointly move the Court to appoint a commission to determine the compensation
attributable to Columbia’s acquisition of the nine tracts, which constitute six separate parcels,
remaining at issue in the Consolidated Action (the “Valuation Parcels”).
Federal Rule of Civil Procedure 71.1 generally provides that “[i]n an action involving
eminent domain under federal law, the court tries all issues, including compensation[.]” Fed. R.
Civ. P. 71.1(h)(1).

However, there is an exception to this rule that allows a court to—

notwithstanding a party’s demand for a jury trial—appoint “a three-person commission to
determine compensation because of the character, location, or quantity of the property to be
condemned or for other just reasons.” Fed. R. Civ. P. 71.1(h)(2)(A); see, e.g., United States v.
Cunningham, 246 F.2d 330, 332 (4th Cir. 1957) (finding no abuse of discretion in the district
court’s appointment of a commission to determine just compensation); Nat’l R.R. Passenger Corp.
v. Catalina Enters., Inc. Pension Trust, 147 Fed. App’x 378, 381 (4th Cir. 2005) (same). Such a
commission “has the powers of a master under Rule 53(c).” Fed. R. Civ. P. 71.1(h)(2)(D).
As a threshold matter, for this Court to exercise its discretion to appoint a commission, a
party in the condemnation action must make a jury demand. See Fed R. Civ. P. 71.1(h)(2). Jury
demand notwithstanding, it is well-established that “[t]here is no Constitutional right to a jury trial
in eminent domain proceedings.” Nat’l R.R. Passenger Corp., 147 Fed. App’x at 381; see also
United States v. Reynolds, 397 U.S. 14, 20 (1970) (referencing Rule 71.1’s predecessor and
explaining that it “gives the trial court discretion to eliminate a jury entirely”). “Instead, [Rule
71.1(h)(2)] provides only that any party may demand a jury, and that the district court retains the
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discretion to deny the demand and refer the matter to a commission.” Rover Pipeline LLC v.
Kanzigg, No. 2:17-cv-105, 2017 WL 5068458, at *5 (S.D. Ohio June 1, 2017) (quoting Rockies
Express Pipeline, LLC v. 4.895 Acres of Land, No. 2:08-cv-554, 2008 WL 5050644, at *2 (S.D.
Ohio Nov. 20, 2008)) (internal punctuation and alterations omitted).
A district court should appoint a commission where the “character, location, and quantity
of the property to be condemned, as well as ‘other just reasons’ . . . all weigh in favor of appointing
a commission.” Id., 2017 WL 5068458, at *4 (quoting Fed. R. Civ. P. 71.1(h)(2)(A)). In
determining whether a commission is appropriate, this Court “must consider the totality of the
circumstances” and focus on “the overall scope of the project.” Id. at *9 (quoting Moore’s Federal
Practice § 71.1.11[1][d]). The Advisory Committee Notes to Rule 71.1(h) are instructive and
encourage the appointment of a commission in cases involving numerous properties for the
following reasons:
1. [A federal authority] condemns large areas of land of similar kind, involving
many owners. Uniformity in awards is essential. The commission system
tends to prevent discrimination and provide for uniformity in compensation.
The jury system tends to lack of uniformity. Once a reasonable and uniform
standard of values for the area has been settled by a commission, litigation ends
and settlements result.
2. Where large areas are involved many small landowners reside at great distances
from the place where a court sits. It is a great hardship on humble people to
have to travel long distances to attend a jury trial. A commission may travel
around and receive the evidence of the owner near his home.
3. It is impracticable to take juries long distances to view the premises.
4. If the cases are tried by juries the burden on the time of the courts is excessive.
Fed. R. Civ. P. 71.1(h) advisory committee’s note to 1951 amendment; see also Rover Pipeline
LLC, 2017 WL 5068458, at *9 (stating, “courts follow Rule 71.1(h)’s advisory committee notes
in considering whether appointment of a commission will help . . . .”).

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In this case, PCDA made a timely jury demand and, thus, this Court has discretion to honor
that demand or appoint a commission to determine compensation for the remaining six Valuation
Parcels. Considering the quality and location of the Valuation Parcels at issue and the complexity
of the valuation analyses implicated by the taking of the easements, the Court finds that the
appointment of a commission is appropriate in this case.
Absent a commission, a combination of jury and bench trials for the multiple Valuation
Parcels, which present relatively complex valuation issues, will necessarily invite a lack of
uniformity in compensation awards and could give rise to a host of logistical challenges. The
parties represent that the various types of easements to be taken include “(1) non-exclusive
permanent pipeline rights-of way, (2) non-exclusive temporary workspaces, (3) exclusive
permanent surface easements, (4) non-exclusive permanent road access easement, and (5) during
the initial construction of the pipeline only, temporary road access easements.”

Thus, the

character of these easements also weighs in favor of the appointment of a commission. See Rover
Pipeline LLC, 2017 WL 5068458, at *9 (reasoning that it was “not a straight-takings case” where
the condemnor acquired “nearly half a dozen different types of easements on various tracts of
land”). Additionally, counsel explains that some of the Valuation Parcels will present relatively
complex compensation issues, including, in some instances, the easements’ alleged impacts upon
the potential for future development, upon wetland areas, and upon the highest and best use of the
remaining lands. The complexity of these issues supports the appointment of a commission.
Further, as the six Valuation Parcels are spread across multiple counties, if travel to any parcel is
necessary, it will be considerably easier and less expensive for a commission to travel to that
property rather than a jury or the Court and its staff. Finally, a commission would allow “the
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parties to conclude their dealings more quickly than would jury trials while concurrently serving
to further judicial economy.” Rover Pipeline LLC, 2017 WL 5068458, at *10 (quoting Rockies
Express Pipeline, 2008 WL 5050644, at *5).
Accordingly, the Court GRANTS the parties’ joint motion for appointment of a
commission. (ECF No. 280.) The Court will hold a telephonic status conference on March 24,
2020, at 10:00 a.m. to discuss appointment of a commission. The call-in information for the call
is as follows: 703-724-3100, then dial 4002661# to be placed on hold pending the start of the call.
IT IS SO ORDERED.
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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March 17, 2020