Transcon. Gas Pipe Line Co. v. Permanent Easement for 2.59 Acres

TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, PLAINTIFF, v. PERMANENT EASEMENT FOR 2.59 ACRES, TEMPORARY EASEMENTSFOR 5.45 ACRES AND TEMPORARY ACCESS EASEMENT FOR 2.12 ACRESIN PINE GROVE TOWNSHIP, SCHUYLKILL COUNTY,PENNSYLVANIA, TAX PARCEL NUMBER 21-04-0016.000, 361CHAPEL DRIVE, PINE GROVE, PINE GROVE TOWNSHIP, SCHUYLKILLCOUNTY, PA, RYAN J. REGEC, AND ALL UNKNOWN OWNERS, DEFENDANTS.

Case No: 4:17-CV-00289

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

March 24, 2017

(Judge Brann)

MEMORANDUM OPINION

I. BACKGROUND

On February 15, 2017, Plaintiff, Transcontinental Gas Pipe Line Company, LLC, hereinafter "Transco," filed a complaint in condemnation for both temporary and permanent easements pursuant to Federal Rule of Civil Procedure 71.1 and the Natural Gas Act, 15 U.S.C. § 717, et. seq. against the above captioned Defendants, a parcel of land and its owner, Ryan J. Regec (hereinafter "Regec"). Previously, on February 3, 2017, the Federal Energy Regulatory Commission, hereinafter "FERC," granted Transco a certificate of public convenience and necessity, hereinafter "the certificate." Having been granted the certificate, Transco filed suit after being unable to negotiate the amount of compensation to be paid for the right-of-way with Regec, who demands compensation in excess of $3,000.

Transco intends to construct, operate and maintain pipeline for the Atlantic Sunrise Project; construct new and make modifications to existing, compressor stations; construct new and make modifications to existing, meter stations; make modifications to existing regulator stations; and make modifications to existing mainline valve locations in South Carolina, North Carolina, Virginia, Maryland, and, as largely relevant here, 199.5 miles¹ through Pennsylvania.²

On February 20, 2017, Transco filed a motion for partial summary judgment and a motion for preliminary injunction.³ A hearing was held on these motions onMarch 23, 2017.⁴ After taking testimony and considering arguments from both Transco and Regec, Transco's two motions are granted.

II. DISCUSSSION

a. Partial Summary Judgment will be granted in Transco's favor as there is no genuine dispute of material fact as the Defendant admitted in his testimony the elements necessary for Transco's right of eminent domain.

Summary judgment is appropriate where "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."⁵ A fact is "material" where it "might affect the outcome of the suit under the governing law."⁶ A dispute is "genuine" where "the evidence is such that a reasonable jury," giving credence to the evidence favoring the nonmovant and making all inferences in the nonmovant's favor, "could return a verdict for the nonmoving party."⁷

The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment.⁸ The moving party may satisfy this burden by either (i) submitting affirmative evidence that negates an essential element of the nonmoving party's claim; or (ii) demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's case.⁹

Where the moving party's motion is properly supported, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth "genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."¹⁰ For movants and nonmovants alike, the assertion "that a fact cannot be or is genuinely disputed must" be supported by "materials in the record" that go beyond mere allegations, or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."¹¹

"When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must 'identify those facts of record which wouldcontradict the facts identified by the movant.'"¹² Furthermore, "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion."¹³

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but instead to determine whether there is a genuine issue for trial.¹⁴ Credibility determinations are the province of the factfinder, not the district court.¹⁵ Although the court may consider any materials in the record, it need only consider those materials cited.¹⁶

Section 717f(h) of the Natural Gas Act grants the right of eminent domain for construction of pipelines, as follows:

When any holder of a certificate of public convenience and necessity cannot acquire by contract, or 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, it may acquire the same by the exercise of the right of eminent domain in the district court of the United States for the district in which such property may be located, or in the State courts. The practice and procedure in anyaction or proceeding for that purpose in the district court of the United States 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: Provided, That 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.

"To condemn the easements at issue, [the gas company] must demonstrate it holds a FERC certificate of public convenience and necessity; the rights-of-way to be condemned are necessary for the construction, operation, and maintenance of the pipeline; and it has been unable to acquire the proposed rights-of-way from the landowner"¹⁷ and the landowner is demanding more than $3,000. "[A] certificate of public convenience and necessity [therefore] gives its holder the ability to obtain automatically the necessary right of way through eminent domain, with the only open issue being the compensation the landowner defendant will receive in return for the easement."¹⁸

I find that there is no genuine issue of material fact as to Transco's right to eminent domain over the above captioned property. In fact, during cross-examination at the March 23, 2017 hearing, Defendant Regec admitted the elements delineated in the Natural Gas Act for Transco to exercise eminent domain in the form of both temporary and permanent easements on the subject property.There is no question that FERC has issued a certificate of public convenience and necessity to Transco, a natural gas company as defined by the Natural Gas Act 15 U.S.C. § 717a(6). "By issuing the Certificate [of public necessity] to [Plaintiff], FERC has determined that the Subject Property is necessary to the operation of the Pipeline[; t]his determination cannot be challenged by Defendants."¹⁹ Accordingly, then, it has been determined by a federal regulatory agency that the rights-of-way to be condemned are necessary for the construction, operation, and maintenance of the pipeline. Finally, despite attempts through good-faith negotiations, Transco has been unable to acquire the proposed rights-of-way from the landowner, who demands compensation in excess of $3,000.²⁰ Partial summary judgment will therefore be entered in favor of Transco as there remains no genuine dispute of material fact. b. A preliminary injunction will be entered in Transco's favor.

Because of the unique procedures associated with federal condemnation actions arising under the Natural Gas Act, Plaintiff must first establish that it has a substantive right to condemn the property at issue. Once a substantive right has been found, a court "may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction" pursuant to Federal Rule of Civil Procedure 65, which governs the granting of preliminary injunctions.²¹ "The [Natural Gas Act] does not allow for "quick take" powers; in a condemnation action under the Act, we must evaluate access to property under the preliminary injunction rubric of Federal Rule of Civil Procedure 65(c)."²² Rule 65 provides in pertinent part:

(a) Preliminary Injunction.

(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.

(2) Consolidating the Hearing with the Trial on the Merits. Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of thetrial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial

. . .

(c) Security. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives 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. The United States, its officers, and its agencies are not required to give security.

"It is well established that 'a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial or on the merits.'"²³ "A preliminary injunction[,...