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Transcontinental Gas Pipe Line Co., LLC v. Permanent Easement for 2.14 Acres and Temporary Easements for 3.59 Acres In Conestoga Township

United States District Court, E.D. Pennsylvania

August 23, 2017

TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT FOR 2.14 ACRES AND TEMPORARY EASEMENTS FOR 3.59 ACRES IN CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 1201606900000, et al. Defendants. TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT FOR 1.33 ACRES, TEMPORARY EASEMENTS FOR 2.28 ACRES IN CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 1202476100000, 4160 MAIN STREET, CONESTOGA, PA 17516, et al. Defendants. TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT FOR 0.94 ACRES AND TEMPORARY EASEMENTS FOR 1.61 ACRES IN CONESTOGA TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 1203589400000, SICKMAN MILL ROAD, et al. Defendants. TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT FOR 2.02 ACRES AND TEMPORARY EASEMENTS FOR 2.76 ACRES IN MANOR TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 4100300500000, 3049 SAFE HARBOR ROAD, MANOR TOWNSHIP, LANCASTER, PA, et al. Defendants. TRANSCONTINENTAL GAS PIPE LINE COMPANY, LLC, Plaintiff,
v.
PERMANENT EASEMENT FOR 1.02 ACRES AND TEMPORARY EASEMENTS FOR 1.65 ACRES IN WEST HEMPFIELD TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA, TAX PARCEL NUMBER 3000462100000, et al. Defendants.

          MEMORANDUM OPINION

          SCHMEHL, J.

         i. Introduction

         Plaintiff, Transcontinental Gas Pipeline Company, LLC ("Transco"), is involved in a project to construct and operate a natural gas pipeline running through five states, including a portion of Lancaster County, Pennsylvania. Before the Court is the Motion for Partial Summary Judgment of Plaintiff in the four of the five above-captioned cases.[1] Defendant/landowners Hilltop Hollow Limited Partnership, Hilltop Hollow Partnership, LLC, General Partner to Hilltop Hollow Limited Partnership ("Hilltop"), Stephen Hoffman ("Hoffman"), Blair and Megan Mohn ("Mohn") and Lynda Like ("Like") all filed oppositions to Plaintiffs Motions for Partial Summary Judgment. Plaintiff filed replies, and argument was held on said motions.

         Also before the Court is Transco's Motions for Preliminary Injunction as to the four landowners above, as well as Adorers of the Blood of Christ, United States Province ("Adorers"). The landowners in question have opposed Plaintiffs Motions for Preliminary Injunction, and an evidentiary hearing was held on said motions. For the following reasons, I find that Plaintiff has the substantive right to condemn the properties in question and Plaintiffs Motions for Partial Summary Judgment are granted. Further, I find that Plaintiff has the right to immediate possession of the properties in question and Plaintiffs Motions for Preliminary Injunction are granted.

         II. MOTIONS FOR PARTIAL SUMMARY JUDGMENT

         A. LEGAL STANDARD

         Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. Proc. 56(c). "A motion for summary judgment will not be defeated by 'the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 247-248 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

         In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. and N.J.. 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250.

         B. FACTUAL BACKGROUND

         On March 31, 2015, Transco filed an application with the Federal Energy Regulatory Commission ("FERC") under section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c), and Part 157 of the FERC's regulations for a certificate of public convenience and necessity for its project to construct and operate a natural gas pipeline in Pennsylvania, Maryland, Virginia, North Carolina and South Carolina. On October 22, 2015, FERC mailed a letter to affected landowners, describing the project and inviting them to participate in the environmental review process. (FERC Order, ¶ 68.) On May 5, 2016, FERC issued a draft Environmental Impact Statement, setting a public comment period from May 12, 2016 to June 27, 2016. (FERC Order, ¶ 72.) FERC staff held four public comment meetings between June 13 and 16, 2016, at which over 200 speakers commented. (Id.) FERC also received over 560 written comments in response to the draft EIS. (Id)

         On October 13, 2016, FERC sent a letter to landowners regarding two alternative pipeline routes, and allowed a special 30 day comment period, during which time it received 25 letters regarding the proposed alternatives. (FERC Order, ¶ 73.) On November 3, 2016, FERC issued for comment a draft General Conformity Determination. (FERC Order, ¶ 74.) On December 30, 2016, FERC issued a final Environmental Impact Statement. (FERC Order, ¶ 75.) Thereafter, on February 3, 2017, FERC issued an order granting Transco a certificate of public convenience and necessity to construct, install, modify, operate, and maintain the Project known as the Atlantic Sunrise pipeline. (David Sztroin Declaration, ¶ 13.) In order to construct, install, operate and maintain the FERC-approved project, Transco needs to obtain rights of way as described and depicted as Exhibit A attached to the Complaint in each of the above matters and as Exhibit B attached to the Sztroin declaration. (Sztroin Dec, ¶ 2, 17.) These rights of way conform to the pipeline route reviewed and approved by the FERC in the order of February 3, 2017. (Sztroin Dec, ¶ 18.) The value of the Rights of Way sought in each of the above matters is claimed by the respective Landowners to be in excess of $3, 000, as each Landowner has rejected an offer by Transco to purchase the rights of way for more than $3, 000. (Declaration of Aaron Blair, ¶¶ 8, 9.)

         The FERC Certificate lists timely and untimely intervenors. To be considered a timely intervenor, a landowner was required to file a motion to intervene within two weeks of April 15, 2015, when notice of Transco's application was published in the Federal Register. Landowner Stephen Hoffman timely intervened and Gary and Michelle Erb (owners of Hilltop Hollow) also intervened, albeit untimely, in the FERC proceeding as party intervenors. (FERC Order, Appendix A and B.) Although they did not intervene in the FERC proceedings, Landowners Blair and Megan Mohn and Lynda Like submitted comments to FERC regarding the project during the public comment period.

         C. DISCUSSION

         The Natural Gas Act permits the holder of a certificate of public convenience and necessity issued by FERC to use eminent domain to acquire rights of way necessary to construct, operate and maintain a project as approved by the FERC Order. 15 U.S.C. § 717f(h). Courts have held that the NGA authorizes a party to exercise the federal power of eminent domain if it meets the three-prong test set forth in the statute:

1) The party must hold a FERC Certificate of Public Convenience and Necessity;
2) The party has not been able to acquire the property rights required to construct, operate and maintain a FERC-approved pipeline by agreement with the landowners; and
3) The value of the property sought to be condemned is more than $3, 000. Columbia Gas Transmission, LLC v. 1.01 Acres. 768 F.3d 300, 304 (3d Cir. 2014); Steckman Ridge GP, LLC v. An Exclusive Natural Gas Storage Easement Beneath 11.078 Acres, No. 08-168, 2008 WL 4346405, at *12-*13 (W.D. Pa. Sept. 19, 2008); Alliance Pipeline L.P. v. 4.360 Acres of Land, 746 F.3d 362, 364 (8th Cir. 2014); Millennium Pipeline Co., L.L.C. v. Certain Permanent and Temporary Easements, 777 F.Supp.2d 475, 479 (W.D. NY. 2011); affd 552 F.App'x 37 (2d Cir. 2014).

         In the above matters, there is no dispute that Transco holds a FERC certificate, that it has been unable to acquire the property rights in question to construct, operate and maintain the FERC-approved pipeline by agreement with the landowners, and that the value of the properties in question is greater than $3, 000. However, the landowners have opposed the entry of partial summary judgment in this matter and present several ' arguments in opposition to Transco's exercise of eminent domain. Landowners Hilltop and Hoffman argue that they have been denied their due process rights under the Fifth Amendment to the United States Constitution and that Plaintiff therefore does not have the authority to condemn the Rights of Way. Landowners Like and Mohn argue that the FERC order is a "conditioned" order without "force or effect" and that the Rights of Way being condemned exceed the scope of the FERC order. As discussed below, I find that all of these arguments are unpersuasive. Landowners cannot establish any genuine issue of material fact as to the three conditions set forth in the Natural Gas Act required prior to the exercise of eminent domain by Transco; therefore, Plaintiff is entitled to the entry of partial summary judgment in this matter.

         1. HILLTOP HOLLOW AND HOFFMAN

         Hilltop Hollow and Hoffman ("Hilltop") do not dispute the fact that Transco has a FERC certificate, has been unable to acquire the rights of way that it needs to construct its pipeline, and that the value of the property in question is over $3, 000. Rather, Hilltop argues that its due process rights under the Fifth Amendment are being violated.

         First, Hilltop argues that this Court has jurisdiction in this matter beyond the issue of fair compensation. Hilltop admits that "FERC's procedures and the Natural Gas Act provide that substantive challenges to the Certificate Order be directed in the first instance to FERC, " but then argues that the "importance of Hilltop's right to due process and the de facto finality of the proposed taking, ...


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