Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Transcontinental Gas Pipe Line Co., LLC v. Permanent Easement For 2.59 Acres

United States District Court, M.D. Pennsylvania

March 24, 2017

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

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         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 miles[1] 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 on March 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 would contradict 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 any action 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 the trial 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[, however, ] is an extraordinary remedy never awarded as of right.”[24]

         Generally, a party seeking a preliminary injunction must establish four factors: (1) a reasonable probability of success on the merits of their argument; (2) irreparable harm to the movant in the absence of relief; (3) granting the preliminary injunction will not result in greater harm to the nonmoving party; and (4) the public interest favors granting the injunction.[25] In the case at bar, the four factors favor entering the preliminary injunction as requested by Transco.

         First, Transco has succeeded on the merits. Rule 65 motions in eminent domain cases are singular. Unlike preliminary injunctions in other types of civil actions, those sought in condemnation cases also request an entry of judgment on the merits contemporaneously with the motion for preliminary injunction. Whereas the question in other cases is the probability of success on the merits, in this type of proceeding, a decision has been made on the merits. Therefore, given the grant of partial summary judgment in favor of Transco's substantive right to condemn, the likelihood of success on the merits is established conclusively. Accordingly, this factor favors Transco.

         Second, Transco will suffer irreparable harm in the absence of injunctive relief. Transco set forth several examples of irreparable harm both in its papers and at the hearing. The first is monetary. In its brief supporting the motion, Transco contends non-possession will cost $500, 000 per month, and will delay revenues of thirty-three million dollars ($33, 000, 000) per month because possession is necessary in order to begin conducting field surveys. The testimony of David Sztroin, hereinafter “Sztroin, ” the pipeline project manager for the Atlantic Sunrise Project, is consistent with Transco's assertions. Sztroin testified that anticipated revenues following the completion of this project are expected to be four-hundred million dollars ($400, 000, 000) per year.

         FERC set several conditions precedent for Transco, one of which is that Transco conduct field surveys[26] on the subject properties. Transco contends that it cannot commence construction of the pipeline until after the remaining field surveys are completed. FERC also set 43 other pre-construction conditions that need to take place after the field surveys are complete and before construction commences. Transco will suffer substantial costs and loss of profits if it cannot begin the project as soon as possible.

         The next type of irreparable harm set forth by Transco is that it will breach contracts with both subcontractors and vendors if it cannot possess the subject properties in a timely fashion. The contract with shippers is designed so that the pipeline is in service by the 2017-2018 winter heating season. Sztroin testified that the contracts with shippers were a prerequisite to filing with FERC, and breaking those contracts would cause Transco to “lose credibility.” This argument also militates against Plaintiff, as Transco has acknowledged that delays in obtaining the FERC certificate have already caused it to miss that deadline, and the current anticipated completion date for the project is now July 2018.

         In further support of its irreparable harm argument, Transco contends that its “in use” date will continue to be pushed back if possession is not ordered by March 31, 2017 because 12 of 43 preconditions set by FERC require re-submission to FERC based on the results of the field surveys. Moreover, Transco sets forth that the field surveys may well change the planned drawings from the engineers, and could conceivably set that process ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.