Hamman v. Southwestern Gas Pipeline, Inc.

• Citation: 721 F.2d 140
• Decision Date: 12 December 1983
• Docket Number: No. 83-1028,83-1028
• Parties: William Johnson HAMMAN, Blake Campbell Hamman, and Eva J. Hamman, Individually and as next friend of Robert Charles Hamman, a minor, Plaintiffs-Appellants, v. SOUTHWESTERN GAS PIPELINE, INC., A Texas Corporation, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 140

721 F.2d 140

William Johnson HAMMAN, Blake Campbell Hamman, and Eva J Hamman, Individually and as next friend of Robert Charles Hamman, a minor, Plaintiffs-Appellants, v. SOUTHWESTERN GAS PIPELINE, INC., A Texas Corporation Defendant-Appellee.

No. 83-1028.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1983.

Law, Snakard, Brown & Gambill, Robert M. Randolph, G. Parker Young, Fort Worth, Tex., for plaintiffs-appellants.

Cantey, Hanger, Gooch, Munn & Collins, Stephen L. Tatum, Fort Worth, Tex., Sewell & Forbis, James E. Forbis, Decatur, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, GEE and TATE, Circuit Judges.

GEE, Circuit Judge:

On this appeal we are asked to determine whether a pipeline owned by appellee Southwestern Gas Pipeline, Inc. ("Southwestern") is subject to the safety regulations promulgated under the Natural Gas Pipeline Safety Act, 49 U.S.C. Sec. 1671 et seq. (Supp. V 1981). We find that the pipeline is subject to the regulations and reverse the judgment of the district court.

I.

In late 1976, Southwestern constructed a pipeline in Jack County, Texas, known as the "Worthington Lateral." The total length of the Worthington Lateral is 66,855 feet, of which 15,423 feet cross properties allegedly belonging to appellants. The Worthington Lateral terminates on both ends with block valves. Among the several functions of block valves is permitting the isolation of segments of the pipeline so that new wells may be connected to it.

The block valve at the northeastern end of the pipeline connects with three smaller pipelines. These three pipelines are attached to smaller lines which run to ten or so gas wells. The block valve at the southwestern end of the Worthington Lateral is also connected to several pipelines. Some of these pipelines lead to producing gas wells, and one of them leads to a gas processing plant.

Just short of the northeastern block valve, an interconnecting pipeline connects the Worthington Lateral to a pipeline known as the "Gladys Williams Line." The Gladys Williams Line, owned by Natural Gas Pipeline of America, transports gas from several wells to a processing plant in Bridgeport, Texas.

In October 1981, appellants filed suit in federal district court alleging that, in constructing the Worthington Lateral, Southwestern had violated regulations promulgated under the Natural Gas Pipeline Safety Act, 49 U.S.C. Sec. 1671 et seq. (Supp. V 1981) ("the Act"). In related claims made under the laws of Texas, appellants asserted that Southwestern had laid the pipeline across their property without the authority of a valid easement or right of way and that the pipeline hampered their use and enjoyment of the property. Southwestern moved for partial summary judgment on the federal claim. The district court granted the motion, dismissing the single federal claim and, in a second order, declined to exercise pendent jurisdiction over the remaining state claims.

II.

Appellants argue that the summary judgment was procedurally improper in that they did not receive notice and a hearing as provided by Fed.R.Civ.Pro. 56(c). Southwestern filed its motion for summary judgment in August 1981. On September 25, 1981, appellants filed their response to that motion. Southwestern filed its rejoinder to appellants' response on October 30, 1981. In February 1982, the district court granted Southwestern's motion without having given express notice that it was taking the case under advisement.

Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment motion shall be served at least ten days before the time fixed for the hearing. We have previously interpreted the language of this rule as requiring notice to an adverse party and a hearing. Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir.1976). Such a "hearing," however, need not necessarily be an oral one. Rather, the rule contemplates ten days advance notice to the adverse party that the matter will be taken under advisement as of a certain day. Id.

The Kibort court specifically stated, however, that procedures provided by local rules requiring motions for summary judgment to be accompanied by briefs and requiring opposing affidavits and briefs to be filed within a certain period afford an adequate hearing within the meaning of the rule. Id. at 91 n. 1. In Howell v. Tanner, 650 F.2d 610 (5th Cir.1981), we held that a local rule providing that a respondent to a motion for summary judgment must submit all briefs within ten days and that all motions would be decided without a hearing unless otherwise ordered by the court fully satisfied the notice and hearing requirements of Rule 56.

Local rules governing today's case are quite similar to those in Howell. Rule 5.1(e) provides that "[a]ny response to a motion shall be filed within 20 days from the date of filing of the motion. N.D.Tex.R. 5.1(e). Rule 5.1(f) provides that "[o]ral argument on motions will not be held unless directed by the Court." N.D.Tex.R. 5.1(f). These rules put appellants on notice that the district court could decide the motion at any time after 20 days had passed from the time it was filed. Appellants had filed a responsive brief. The requirements of Rule 56(c) were satisfied.

III.

Appellants allege that Southwestern violated a safety regulation promulgated under the Act. This regulation requires that "transmission lines" be buried at least thirty inches below the surface of the ground. 49 C.F.R. Sec. 192.327 (1980). Appellants contend that the Worthington Lateral is such a transmission line and is buried less than thirty inches below the surface. The district court granted Southwestern's motion for partial summary judgment, holding that, as a matter of law, the Worthington Lateral is a "gathering line" and thus is not subject to the depth regulation.

A litigant is entitled to summary judgment if he demonstrates that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Central Oil & Supply Corp. v. United States, 557 F.2d 511, 515 (5th Cir.1977). The parties do not dispute any material fact. ¹ Thus, the only issue before us today is whether the Worthington Lateral as described by the parties is a "gathering line" or a "transmission line."

The regulations define three types of pipelines. A "gathering line" is "a pipeline that transports gas from a current production facility to a transmission line or main." 49 C.F.R. Sec. 192.3 (1982). A "transmission line" is "a pipeline, other than a gathering line, that:

(a) Transports gas from a gathering line or storage facility to a distribution center or storage facility,

(b) Operates at a hoop stress of 20 percent or more of SMYS, or

(c) Transports gas within a storage field."

A "distribution line" is "a pipeline other than a gathering or transmission line." Id.

Southwestern argues that the Worthington Lateral falls under the gathering line definition. To do so, the pipeline must transport gas from a "current production facility." Although this term is not defined in the regulations, it appears to mean "gas well." The Hammans argue that the Worthington Lateral does not transport gas from a well but rather from a block valve which, through a series of pipes, eventually leads to several wells. Southwestern contends that this indirect connection to wells satisfies the regulation.

In interpreting a statute, a court should construe the language so as to give effect to the intent of Congress. Legislative history can evidence congressional intent. Solomon v. United States, 559 F.2d 309 (5th Cir.1977). Congress specifically stated that the purpose of the Act was to provide for "the prescription and enforcement of minimum federal safety standards for the transportation of natural and other gas by pipeline." H.R.Rep. No. 1390, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 3223. Indeed, the House Report specifically discusses deaths caused by bulldozers or plows cutting...