Guardian Pipeline, L.L.C. v. 529.42 Acres of Land

• Decision Date: 03 January 2002
• Docket Number: No. 01 C 4696.,01 C 4696.
• Citation: 210 F.Supp.2d 971
• Parties: GUARDIAN PIPELINE, L.L.C., a Delaware Limited Liability Company, Plaintiff, v. 529.42 ACRES OF LAND, more or less, in Kendall and McHenry Counties, Illinois; Randolph J. Reigh, et al., and Unknown Owners, Defendants.
• Court: U.S. District Court — Northern District of Illinois

210 F.Supp.2d 971

GUARDIAN PIPELINE, L.L.C., a Delaware Limited Liability Company, Plaintiff, v. 529.42 ACRES OF LAND, more or less, in Kendall and McHenry Counties, Illinois; Randolph J. Reigh, et al., and Unknown Owners, Defendants.

No. 01 C 4696.

United States District Court, N.D. Illinois, Eastern Division.

January 3, 2002.

Gerald Allen Ambrose, John A. Heller, Thomas A. Lambert, Sidley, Austin, Brown & Wood, Chicago, IL, for Plaintiff.

Leo N. Cinquino, Celeste P. Cinquino, Ronald G. Klein, Righeimer, Martin & Cinquino, Chicago, IL, Stephen Douglas Helm, Michael G. Philipp, Helm & Day, Naperville, IL, Daniel J. Kramer, Dean Joseph Kleronomos, Law Offices of Daniel J. Kramer, Yorkville, IL, Kevin M. Carrara, Mark William Daniel, Rathje, Woodward, Dyer & Burt, Wheaton, IL, John Stanley Vishneski, Angela Elbert Dietz, Neal, Gerber & Eisenberg, Chicago, IL, Adam L. Saper, Steven M. Puiszis, James Constantine Vlahahis, Thomas Mulroy, III, Hinshaw & Culbertson, Chicago, IL, Gary Richard Kardell, Thomas J. Lester, Richard Shane Porter, Hinshaw & Culbertson, Rockford, IL, Robert S. Krockey, Krockey, Cernugel, Cowgill, Clark & Pyles, Joliet, IL, John Santo Gallo, Kenneth A. Carlson, Cory D. Lund, Tracy, Johnson, Bertani & Wilson, Joliet, IL, Edward F. Diedrich, Christian Joseph Cosentino, David Elmhurst Do, Edward F. Diedrich & Associates, DeKalb, IL, Michael Edward Coppedge, Cowlin, Curran & Coppedge, Crystal Lake, IL, Steven Andrew Viz, Deutsch, Levy & Engel, Chicago, IL, John P. Duggan, Lowe & Steinmetz, Ltd., Aurora, IL, John W. Damisch, Mark William Damisch, Sherry L. Vaughn, Damisch & Damisch, Ltd., Chicago, IL, Brian L. Crowe, Gregory Canard Ward, Shefsky, Froelich & Devine, Ltd., Chicago, IL, William Edward Ryan, Terrence Downey McCabe, Burke & Ryan, Chicago, IL, Michael Alton Mattingly, Hynds, Rooks & Yohnka, Mooris, IL, Richard D. Skelton, Raysa& Zimmermon, Ltd., Richard John Nogal, Elizabeth J. Boddy, Lillig & Thorsness, Ltd., Oak Brook, IL, Deborah Schmitt Bussert, Samuel Glenn Harrod, IV, Kevin J. Joyce, Meltzer, Purtill & Stelle, Schaumburg, IL, James M. Murray, Arlington Heights, IL, Robert C. Becker, Jr., Office of Robert C. Becker, Jr., Genoa, IL, Paul G. Krentz, Murphy, Hupp, Foote, Mielke & Kinnally, Aurora, IL, Bradley Paul Nelson, Schopf & Weiss, Chicago, IL, Michael J. Martin, Franklin Patrick Andreano, Douglas Ennis Heathcock, Dunn, Martin, & Miller, Ltd., Joliet, IL, Donald L. Johnson, Johnson Law Firm, Chicago, IL, James R. Figliulo, Cheryl A. Alesia, Carl A. Gigante, Figliulo & Silverman, Chicago, IL, Joseph Thomas Gentleman, Chicago, IL, Craig S. Mielke Foote, Myers, Mielke, Flowers & Solano, Geneva, IL, Robert S. Pilmer, Melissa S. Barnhart, Pilmer & Barnhart, Yorkville, IL, Lawrence E. Morrissey, Lawrence E. Morrissey, Ltd., Chicago, IL, Charles F. Morrissey, Karbal, Cohen Economou & Dunne, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

Plaintiff has moved to confirm condemnation of permanent and temporary easements. That motion is granted, subject to rulings herein made.

The project involves the installation of a 142-mile long natural gas pipeline from the vicinity of Joliet, Illinois, into Wisconsin. This condemnation action concerns the acquisition of a corridor of land rights from Joliet through four Illinois counties to the Wisconsin border. That process is governed by federal law.

In 1977 Congress created the Federal Energy Regulatory Commission (FERC), 42 U.S.C. § 7171. FERC then took over from the Federal Power Commission the responsibility for determining the public necessity for the development of natural gas pipelines. 42 U.S.C. § 7172. An entity proposing to construct such a pipeline must obtain a certificate of public convenience and necessity from FERC (FERC Certificate). 15 U.S.C. § 717f(c). The holder of an FERC Certificate is accorded rights of eminent domain by 15 U.S.C. § 717f(h):

(h) Right of eminent domain for construction of pipelines, etc.

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.

Any review of the FERC order is by way of petition to the court of appeals where the proposed pipeline is located or the holder of the FERC Certificate has its principal place of business or to the Court of Appeals for the District of Columbia. 15 U.S.C. § 717r. The condemnation procedures are set forth in Rule 71A of the Federal Rules of Civil Procedure.

Those statutory and rule directions have translated into judicial admonitions. One is a judicial gloss that the holder must engage in good faith negotiations with the landowner before it can invoke the power of eminent domain, e.g., Transcontinental Gas Pipe Line Corp. v. 118 Acres of Land, 745 F.Supp. 366, 369 (E.D.La.1990), although the statutes have no such specific requirement and we are unaware of any case in which condemnation has been denied or even delayed because of an alleged failure to engage in good faith negotiations. That same case suggests that the holder must present some evidence of public necessity other than the FERC determination. Id. at 370. USG Pipeline Co. v. 1.74 Acres in Marion County, Tennessee, 1 F.Supp.2d 816, 820 (E.D.Tenn.1998), concludes that is just plain wrong, and we agree. The jurisdiction of this court is limited to evaluating the scope of the FERC Certificate and ordering condemnation as authorized by that certificate. Id., Tennessee Gas Pipeline Co. v. 104 Acres of Land More or Less, in Providence County of the State of Rhode Island, 749 F.Supp. 427, 430 (D.R.I. 1990). The validity and conditions of the FERC Certificate cannot be collaterally attacked in district court. Review of the validity of the certificate is the exclusive province of the appropriate court of appeals. Williams Natural Gas Co. v. City of Oklahoma City, 890 F.2d 255, 262 (10th Cir.1989), cert. denied, 497 U.S. 1003, 110 S.Ct. 3236, 111 L.Ed.2d 747 (1990). This court's role is mere enforcement. Tennessee Gas Pipeline Co. v. Massachusetts Bay Transportation Authority, 2 F.Supp.2d 106, 110 (D.Mass.1998). And the proceedings in this court are governed by Rule 71A, not state law. Southern Natural Gas Co. v. Land, Cullman County, 197 F.3d 1368, 1373 (11th Cir.1999).

Given that legal framework, we turn to the objections and defenses advanced here as they relate to the administrative and condemnation record, which are included with the pleadings in this case. The objections and defenses are many and varied: a 50-foot right-of-way for a 36" pipe is excessive; the temporary construction space easement is excessive, and there is no legal description for those easements; the legal description of the pipeline...