Columbia Gas Transmission, LLC. v. Booth

Decision Date22 December 2016
Docket NumberCase No. 1:16-CV-1418
PartiesCOLUMBIA GAS TRANSMISSION, LLC., Plaintiff v. BRIANNE BOOTH, et. al., Defendants.
CourtU.S. District Court — Northern District of Ohio

MAGISTRATE JUDGE THOMAS M. PARKER

MEMORANDUM OF OPINION AND ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT
I. Introduction

Columbia Gas Transmission, LLC ("Columbia") instituted this action to obtain an order of condemnation against defendant Medina County landowners ("Medina Landowners"). ECF Doc. No. 793. Columbia claims a right to condemn easements beneath defendants' property for the storage of natural gas it holds for resale. Columbia seeks partial summary judgment, claiming that there is no genuine dispute as to any material fact and that it is entitled to the requested order of condemnation as a matter of law pursuant to the Natural Gas Act ("NGA"), 15 U.S.C. §717f(h), and Federal Rule of Civil Procedure 71.1.1 ECF Doc. No. 794, Page ID# 1436. Columbia also seeks an order awarding it immediate possession of the gas storage easements. ECF Doc. No. 794. Columbia asserts that if partial summary judgment is granted, only the issue of how much it must pay in order to justly compensate defendants would remain. Columbia has supplemented its motion for partial summary judgment with additional Rule 56 evidence. ECFDoc. No. 815. The Medina Landowners oppose Columbia's motion, arguing (1) that Columbia is not entitled to immediate possession of defendants' properties and (2) that Columbia is not entitled to an order of condemnation because it failed to make a "good faith" offer to acquire easements prior to filing the condemnation complaint.2 ECF Doc. Nos. 801, 818.

Columbia's motion for partial summary judgment will be GRANTED IN PART; Columbia has demonstrated that there is no genuine dispute as to any material fact, and it has shown a right as a matter of law to condemn easements for gas storage under defendants' properties. Columbia's motion for an order of immediate possession of the easements will be DENIED. The case will proceed in order to determine the compensation Columbia owes defendants for the easements.

II. Procedural History

This matter was transferred from the Southern District of Ohio after the parties' claims were severed from Wilson et al v. Columbia Gas Transmission, LLC, Case No. 2:12cv01203. ECF Doc. 791. The Wilson plaintiffs filed a class action complaint against Columbia asserting that Columbia was improperly storing natural gas under the land of the putative class members without having acquired storage easements and without paying just compensation. Wilson, 2:12cv01203, ECF Doc. No. 2, Page ID# 10. Columbia later filed an amended counterclaim in Wilson asserting a right to condemnation against the Medina Landowners and other landownersthat Columbia brought into the case.3 Wilson, 2:12cv01203, ECF Doc. No. 275. Columbia and the Medina Landowners jointly requested the severance and transfer of their claims to this district. ECF Doc. No. 789. The parties' claims were severed, transferred and recaptioned here as Columbia Gas, LLC v. Booth, et. al., 1:16cv01418. Columbia then filed the current amended complaint. ECF Doc. No. 793. Columbia contemporaneously filed this motion for partial summary judgment. ECF Doc. No. 794. It also moved for the appointment of a commission which would determine just compensation to be paid for the easements. ECF Doc. No. 795.

III. Standard of Review

"The court shall grant summary judgment if 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." Fed.R.Civ.P. 56(a). The court must view all evidence, and draw all reasonable inferences therefrom, in favor of the non-moving party. Wheat v. Fifth Third Bank, 785 F.3d 230, 237 (6th Cir.2015). Moreover, "the trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative duty to point out specific facts in the record that create a genuine issue of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show "more than a scintilla of evidence to overcome summary judgment;" it is not enough to show that there is slight doubt as to material facts. Id.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or asotherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

Fed. R. Civ. P. 56(e).

IV. Factual Findings

There is no genuine dispute regarding each of the following material facts:

1. Columbia operates an extensive interstate natural gas transportation and storage system. As an integral part of these activities, Columbia administers underground natural gas storage fields. Columbia stores natural gas in underground storage fields during summer months for use in the winter when cold weather causes market demand to exceed the capacity of production and transmission pipelines.4

2. Columbia is a Delaware corporation and a successor to the Ohio Fuel Gas Company.5

3. In 1958, the Ohio Fuel Gas Company applied for and was granted a certificate of public convenience and necessity from the Federal Energy Regulatory Commission ("FERC") for the operation and maintenance of the Medina Storage Field.6

4. In 1970, upon merger with the Ohio Fuel Gas Company, Columbia succeeded to the ownership of and entitlement to the 1958 FERC certificate for the Medina Storage Field.

5. In 1987, FERC again granted Columbia a certificate of public convenience and necessity for the operation and maintenance of the Medina Storage Field. This time, the FERC certificate included a map identifying the reservoir and protective boundaries of the storage field.7

6. The defendants are owners of parcels of land located within the 1987 FERC-certificated boundaries of the Medina Storage Field.8

7. Columbia has been unable to agree with the landowner defendants as to the compensation to be paid for the Storage Easements at issue and has not been able to acquire the easements by contract.9

V. Analysis

Columbia moves for: (1) an order of condemnation granting it the right to own gas storage easements beneath defendants' properties, and (2) an order awarding Columbia immediate possession the easements. ECF Doc. No. 794, Page ID# 1436.

A. Whether Columbia Has a Right to Condemn the Property

Congress enacted the NGA, 15 U.S.C. § 717 et. seq., in 1938. The NGA authorizes private companies engaged in the interstate transportation of natural gas to use eminent domain power to take property for the construction of gas transportation facilities. It is undisputed that the NGA governs Columbia's interstate natural gas operations. Columbia asserts that it meets the NGA's prerequisites to condemn easements for gas storage beneath the Medina Landowner's properties. The NGA grants the right of eminent domain to FERC certificate holders:

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 UnitedStates 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.

15 U.S.C. §717f(h). The NGA has been found to be "sufficiently broad" to include the creation of underground natural gas storage facilities. Columbia Gas Transmission Corp. v. Exclusive Gas Storage Easement, 776 F.2d 125, 128 (6th Cir. 1985).

Columbia has demonstrated that it holds a FERC certificate for the storage of natural gas in the Medina Storage Field which is located beneath the Medina Landowners' properties. See ECF Doc. Nos. 815-1, 815-3, 815-5, 817. Columbia has also submitted evidence that it has been unable to acquire the easement rights to store gas beneath the Medina Landowners' properties by contract or otherwise to agree on compensation. Columbia has shown that it made a cash offer for an easement of $250.00 per lot to each landowner. See Answer to Amended Complaint ECF Doc. No. 808 at ¶3 ("Landowners admit that they do not agree on the unsubstantiated offer of compensation made to them by Columbia."); See also ECF Doc. Nos. 815-5 at ¶¶ 8-9, 815-6, 815-7, 815-9. The Medina Landowners have not disputed any of these facts.

To prevail, Columbia must not only show that it has complied with NGA's requirements but also the demands of Rule 71.1, Fed. R. Civ. P., which controls federal court eminent domain actions. Rule 71.1(c)(2) requires a complaint for condemnation by eminent domain to contain five elements: (A) a short and plain statement of the authority for the taking, (B) the uses for which the property is to be taken, (C) a description sufficient to identify the property, (D) the...

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