Daubenmire v. Columbia Gas Transmission, LLC
| Docket Number | Case No. 2:21-cv-03910 |
| Decision Date | 14 July 2022 |
| Citation | 614 F.Supp.3d 601 |
| Parties | Georganne K. DAUBENMIRE, Plaintiff, v. COLUMBIA GAS TRANSMISSION, LLC, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
John Michael Snider, Jefferson Mitchell Kiser, Stebelton Snider, LPA, Lancaster, OH, for Plaintiff.
Christopher Andrew Rogers, Pro Hac Vice, Michael L. Snyder, Jerome W. Cook, Benesch, Friedlander, Coplan & Aronoff LLP, Cleveland, OH, for Defendant.
This matter is before the Court on the Defendant/Counterclaimant Columbia Gas Transmission LLC's ("Columbia") Motion for an Order of Condemnation (ECF No. 14). For the reasons set forth below, the Court GRANTS Defendant's/Counterclaimant's Motion (Id. ).
Columbia is a Delaware limited liability company that owns and operates one of the largest underground natural gas storage and transmission systems in North America. (ECF No. 14–2 at 2, Decl. of James Scott ¶ 4). Columbia's system transports, on average, three billion cubic feet of natural gas per day through its network of almost 12,000 miles of pipeline and 103 compressor stations in ten states. (Id. ). Moreover, Columbia has—either itself or through its predecessors in interest—operated an element of its pipeline system in Fairfield County, Ohio since 1945. (ECF No. 7 at 4). Columbia uses this element—the Crawford Compressor Station—to pressurize natural gas to facilitate its transportation via Columbia's interstate pipeline system and through its Underground Natural Gas Storage Facilities. (Id. ).
Georganne Daubenmire owns two parcels of land in Lancaster, Ohio located at 6085 Old Logan Road ("Parcel A") and 0 Pump Station Road ("Parcel B"). (ECF No. 4, ¶¶ 3–6). After initially acquiring both Parcel A and B in 1985 (Ohio Warranty Deed, id. at 15), Ms. Daubenmire and her husband transferred Parcel A to themselves via General Warranty Deed in early 1992 (General Warranty Deed, id. at 13). Following her husband's death in 2005, Daubenmire acquired an undivided interest in Parcel B via Certificate of Transfer in 2006. (Id. at 21).
Columbia has constructed, operated, and maintained the Crawford Compressor Station and related facilities on Daubenmire's properties through a series of negotiated instruments with either Daubenmire or her predecessors-in-interest. These instruments include a 1926 Pipeline Right of Way; a 1957 Pipeline Right of Way; a 1971 Oil, Gas, and Storage Lease; a 2006 Launcher/Receiver Right of Way Agreement; and a 2017 Pipeline Right of Way. (ECF No. 14–2 at 4; ECF No. 7 ¶ 8). These transactions have, in part, authorized Columbia to construct, operate, and maintain pipelines and related facilities on, over, through, and under the Daubenmire property.
This pipeline has been operating for the better part of a century and, in one way or another, has touched all three branches of the federal government. Begin with the legislative branch. the power to determine the public necessity for development of natural gas pipelines. PennEast Pipeline Co., LLC v. New Jersey , ––– U.S. ––––, 141 S. Ct. 2244, 2252, 210 L.Ed.2d 624 (2021) ; 42 U.S.C. § 7172. Under the Natural Gas Act, entities proposing to construct a pipeline must obtain a certificate of public convenience and necessity from FERC—known as a "FERC Certificate." 15 U.S.C. § 717f(c) ; ANR Pipeline Co. v. Schneidewind , 801 F.2d 228, 234 (6th Cir. 1986).
The executive branch controls issuance of certificates through "extensive regulations" that FERC has promulgated. ANR Pipeline Co. , 801 F.2d at 235. The process begins with an application from the gas company that includes: "(1) a description of the proposed pipeline project, (2) a statement of the facts showing why the project is required, and (3) the estimated beginning and completion date for the project." E. Tenn. Natural Gas Co. v. Sage , 361 F.3d 808, 818 (4th Cir. 2004) (citing 15 U.S.C. § 717f(d) and 18 C.F.R. § 157.6(b) ) (describing the construction phase of the life of a proposed pipeline project). FERC files notice of the application in the Federal Register, 15 U.S.C. § 157.9; public comment and protest are allowed, id. § 157.10; and FERC conducts a public hearing on the application, id. § 157.11. As part of this evaluation, FERC must investigate the environmental consequences of the proposal and issue an environmental impact statement. See 42 U.S.C. § 4332 ; 18 C.F.R. § 157.9(b). At the end of the process, FERC will issue a certificate if it finds that the proposed pipeline "is or will be required by the present or future public convenience and necessity." 15 U.S.C. § 717f(e). The FERC Certificate specifies a date for the completion of construction and the start of service. 18 C.F.R. § 157.20(b). Finally, "[n]o natural-gas company ... upon completion of any proposed construction or extension shall engage in the transportation or sale of natural gas, ... unless there is in force with respect to such natural-gas company a certificate of public convenience and necessity issued by the Commission authorizing such acts or operations...." 15 U.S.C. § 717f(c).
Once FERC has issued a certificate, the Natural Gas Act empowers the gas company to exercise "the right of eminent domain" over any lands needed for construction, operation, or maintenance of the pipeline. 15 U.S.C. § 717f(h). Under that provision, certificate holders may acquire both "the necessary right-of-way" as well as "the necessary land" to construct and maintain the pipeline. Id. Any "aggrieved" party—including environmental groups and affected landowners—who intervened in the application process may seek a rehearing from FERC challenging the certificate or the conditions it imposes. Id. § 717r(a). Upon such application, FERC may "grant or deny rehearing" or "abrogate or modify" the certificate "without further hearing." Id.
The judicial branch then plays a role at two stages of the certification process. First , aggrieved parties may seek review of a FERC Certificate "in the [federal] court of appeals ... for any circuit wherein the natural-gas company ... is located or has its principle place of business, or in the United States Court of Appeals for the District of Columbia." Id. § 717r(b). The court of appeals may "affirm, modify, or set aside" the certificate "in whole or in part." Id.
Second , once the gas company has obtained a FERC Certificate, it may file a complaint for eminent domain of the relevant property—or a "condemnation action"—"in the [federal] district court ... in which such property may be located." Id. § 717f(h). Federal Rule of Civil Procedure 71.1 governs such condemnation actions. A district court's role remains limited to "mere enforcement" in a FERC condemnation action. Guardian Pipeline LLC v. 529.42 Acres of Land , 210 F. Supp. 2d 971, 974 (N.D. Ill. 2002). That is, aggrieved parties may not "collaterally attack" the "validity and conditions of the FERC Certificate" during a condemnation action in district court. Id. Rather, "[r]eview of the validity of the certificate is the exclusive province of the appropriate court of appeals." Id. (citing Williams Natural Gas Co. v. Oklahoma City , 890 F.2d 255, 262 (10th Cir. 1989) ).
Columbia applied for a FERC Certificate on November 9, 1982. See 22 FERC ¶ 62029 (1983) (ECF No. 7–2 at 2). After its analysis and review, FERC issued a blanket certificate of public convenience and necessity authorizing Columbia to operate, inter alia , its pipeline on January 7, 1983. Id. Notably, FERC issued the certificate in the absence of "petitions to intervene, notices of intervention, or protests to the granting of the application" following "due notice by publication." Id. After extensive fact-finding, FERC concluded as follows:
In addition to encumbrances that existed at the time Daubenmire acquired her property, she has contracted with Columbia twice in the last sixteen years granting additional easements. The first time—in June of 2006—she entered into an Agreement entitled "Launcher/Receiver Right of Way Agreement." (ECF No. 4 at 33). This agreement granted Columbia the "right to erect, maintain, operate, and ... remove a Pig Launcher and/or Receiver," a device used "in connection with transporting and distributing gas and/or any other similar substance or substances" on Parcel B. (Id. ). The parties entered a second agreement entitled "Ohio Right-of-Way Agreement" in 2017.
The 2017 agreement, much like the first, purports to grant Columbia a right of way on Daubenmire's land: parcel # 0040118840. (Id. at 35). Unlike the first agreement that involved the servicing of a Pig Launcher/Receiver, this agreement embraces work involved with "a pipeline" and "an underground communications system" each with appurtenant facilities. (Id. ). Moreover, Daubenmire granted Columbia temporary and permanent rights-of-way.
After the 2006 agreement was entered, Columbia installed the Pig Launcher/Receiver Facility...
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