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Transcontinental Gas Pipe Line Co., LLC v. A Permanent Easement for 0.018 Acres and a Temporary Easement for 0.017 Acres of Land in East Caln Township

August 18, 2010

TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC
v.
A PERMANENT EASEMENT FOR 0.018 ACRES AND A TEMPORARY EASEMENT FOR 0.017 ACRES OF LAND IN EAST CALN TOWNSHIP, CHESTER COUNTY, PENNSYLVANIA, TAX PARCEL NO. 40-01-0006, FRIGYES & MARIA ALEJNIKOV, ET AL
TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC
v.
A PERMANENT EASEMENT FOR 0.426 ACRES AND A TEMPORARY EASEMENT FOR 0.882 ACRES OF LAND IN EAST CALN TOWNSHIP, CHESTER COUNTY, PA, TAX PARCEL #40-01-0003, EDWARD E. AND CAROLE H. KIRKBRIDE, ET AL
TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC
v.
A PERMANENT EASEMENT FOR 0.099 ACRES AND A TEMPORARY EASEMENT FOR 0.015 ACRES OF LAND IN EAST CALN TOWNSHIP, CHESTER COUNTY, PA, TAX PARCEL #40-01-0006.030 AND DONALD A. & LYNETTE A. WILSON



The opinion of the court was delivered by: Savage, J.

MEMORANDUM OPINION

The owners of five properties along the Brandywine Creek (collectively referred to as the "Brandywine Five") seek attorneys' fees and costs from the plaintiff Transcontinental Gas Pipe Line Company, LLC ("Transco"), a natural gas pipeline transmission company, that had instituted these actions to expand its existing rights of way on the properties under federal eminent domain law. They bring their motions pursuant to 42 U.S.C. § 4654(a)(2), claiming that Transco abandoned the proceedings when it chose not to proceed with these actions after it was unsuccessful in securing the required permits from the Pennsylvania Department of Environmental Protection ("PADEP").

Opposing the motion, Transco argues that the fee shifting provision applies only to the United States and not to a private company such as Transco. It also claims that it did not abandon the proceedings because it retains the right to bring a claim in the future. Alternatively, it contends that if it is liable for attorneys' fees, the fee award is limited to the amount actually paid.

We conclude that Transco is liable under § 4654(a) and it did abandon the litigation after the DEP refused to issue a permit to proceed as planned with the project through the Brandywine Five's properties. Therefore, the Brandywine Five are entitled to an award of attorneys' fees, but only in the amount actually charged.

Transco's Exercise of Federal Eminent Domain

Under the Natural Gas Act, Transco has the power of eminent domain when it possesses a Federal Energy Regulatory Commission ("FERC") certificate of public convenience and necessity, and "cannot acquire by contract, or is unable to agree with the owner of the property to the compensation to be paid for, the necessary right-of-way." 15 U.S.C. § 717f(h).

On August 14, 2008, the FERC approved a certificate of public convenience and necessity*fn1 allowing Transco to replace its natural gas transmission line with a larger one along its existing right of way. Transco applied for a water obstruction and encroachment permit from the PADEP to construct the Downingtown Replacement on November 28, 2008. In February 2009, the Brandywine Five and other residents filed a motion for reconsideration with the FERC challenging the issuance of the certificate. The FERC denied the motion.

On April 1, 2009, as authorized by the FERC certificate, Transco filed condemnation actions to enter the land to replace an existing pipeline, and to construct, maintain and repair a larger replacement pipeline along an existing right of way through fifty-one properties, including the land of the Brandywine Five. Eight days later, the PADEP issued Transco a water obstruction and encroachment permit allowing it to proceed with the project, except it prohibited construction along the Brandywine Creek and Ludwig's Run where the Brandywine Five's properties are located.*fn2 The exception was included as a result of the Brandywine Five's efforts before the PADEP. Transco submitted an amended request to the PADEP seeking authorization for construction on both sidesof the Brandywine Creek and Ludwig's Run using an alternative method. After the PADEP failed to respond, Transco revised the amended request to eliminate the creek crossing. This new plan, which was quickly approved, no longer included the Brandywine Five's properties.

Transco advised the court in an August 28, 2009 letter that it intended to proceed with the project without using the Brandywine Five's properties. On September 2, 2009, Transco's condemnation actions against the Brandywine Five were dismissed without prejudice.

Section 4654(a)(2) Attorneys' Fees

Section 4654 states:

(a) Judgment for owner or abandonment of proceedings

The Federal court having jurisdiction of a proceeding instituted by a Federal agency to acquire real property by condemnation shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for his reasonable costs, disbursements, and expenses, including reasonable attorney, ...


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