Mountain Valley Pipeline, LLC v. Simmons, Civil Action No. 1:17CV211

• Decision Date: 02 February 2018
• Docket Number: Civil Action No. 1:17CV211
• Court: U.S. District Court — Northern District of West Virginia
• Parties: MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff, v. Sharon SIMMONS, Administratrix of the Charles D. Simmons Estate (Parcel ID No. 7–13D–11), et al., Defendants.

307 F.Supp.3d 506

MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff,

v.Sharon SIMMONS, Administratrix of the Charles D. Simmons Estate (Parcel ID No. 7–13D–11), et al., Defendants.

Civil Action No. 1:17CV211

United States District Court, N.D. West Virginia.

Signed February 2, 2018

Ariel N. Forbes, Pro Hac Vice, Jennifer M. Thompson, Pro Hac Vice, Nicolle Renee Snyder Bagnell, Reed Smith LLP, Pittsburgh, PA, Stephen E. Hastings, EQT Corporation, Charleston, WV, for Plaintiff.

Isak J. Howell, Isak Howell Law Office, Roanoke, VA, Charles M. Lollar, Sr., Pro Hac Vice, Charles Malcolm Lollar, Jr., Lollar Law, PLLC, Norfolk, VA, Charles Joseph Stevens, W. Jack Stevens, Stevens & Stevens, Attorneys at Law, PLLC, Hamlin, WV, Kenneth E. Webb, Jr., Patrick Craig Timony, George A. Patterson, III, Bowles, Rice, McDavid, Graff & Love, Nicholas S. Preservati, Spilman Thomas & Battle PLLC, Charleston, WV, Derek O. Teaney, Lewisburg, WV, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO STAY [DKT. NO. 31], GRANTING MOTION TO STRIKE [DKT. NO. 28], DENYING AS MOOT MOTION TO DISMISS [DKT. NO. 23–1], AND GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT AND IMMEDIATE ACCESS [DKT. NO. 5]

IRENE M. KEELEY, UNITED STATES DISTRICT JUDGE

The plaintiff, Mountain Valley Pipeline, LLC ("MVP"),¹ seeks to condemn certain temporary and permanent easements necessary for the construction and operation of an interstate natural-gas pipeline. To facilitate the expeditious completion of its project, MVP moves the Court to grant partial summary judgment regarding its right to condemn the easements, and to enter a preliminary injunction allowing it to access and possess the property prior to paying just compensation (Dkt. No. 5).

Having carefully considered the record and the parties' arguments regarding the pending motions, for the following reasons, the Court DENIES the Motion for Stay of Proceedings (Dkt. No. 31), GRANTS MVP's Motion to Strike (Dkt. No. 28), DENIES AS MOOT Defendants' Motion to Dismiss (Dkt. No. 23–1), and GRANTS MVP's Motion for Partial Summary Judgment and Immediate Access to and Possession of the Easements Condemned for Construction of the MVP Project (Dkt. No. 5).

I. LEGAL FRAMEWORK

This proceeding is governed by the Natural Gas Act ("NGA" or "the Act"), which provides private natural-gas companies the power to acquire property by eminent domain. 15 U.S.C. § 717 et seq. Under the Act, a "natural-gas company" is "a person engaged in the transportation of natural gas in interstate commerce, or the sale in interstate commerce of such gas for resale." Id. § 717a(6). Such companies may build and operate new pipelines only after obtaining a certificate of public convenience and necessity ("Certificate") from the Federal Energy Regulatory Commission ("FERC" or "the Commission"). As the Fourth Circuit has summarized:

The procedure for obtaining a certificate from FERC is set forth in the NGA, and its implementing regulations. The process begins with an application from the gas company that includes, among other information, (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. Notice of the application is filed in the Federal Register, public comment and protest is allowed, and FERC conducts a public hearing on the application. As part of its evaluation, FERC must also investigate the environmental consequences of the proposed project and issue an environmental impact statement. At the end of the process FERC issues a certificate if it finds that the proposed project "is or will be required by the present or future public convenience and necessity." In its order issuing a certificate, FERC specifies a date for the completion of construction and the start of service. The certificate may include any terms and conditions that FERC deems "required by the public convenience and necessity."

E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 818 (4th Cir. 2004) (internal citation omitted).

"Once FERC has issued a certificate, the NGA empowers the certificate holder to exercise ‘the right of eminent domain’ over any lands needed for the project." Id. (citing 15 U.S.C. § 717f(h) ). The authority by which natural-gas companies may exercise the right is set forth fully in the Act:

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.

15 U.S.C. § 717f(h). Notably, the "state procedure requirement has been superseded" by the implementation of Fed. R. Civ. P. 71.1, which provides the applicable procedure in most condemnation cases. See Sage, 361 F.3d at 822.

There are, therefore, three essential prerequisites that must be met prior to exercising the power of eminent domain under the NGA. The natural-gas company must only establish that "(a) It is a holder of a certificate of public convenience and necessity; (b) It needs to acquire an easement, right-of-way, land or other property necessary to the operation of its pipeline system; and (c) It has been unable to acquire the necessary property interest from the owner." Rover Pipeline LLC v. Rover Tract No(s) WV–DO–SHB–011.510–ROW–T & WV–DO–SHB–013.000–ROW–T, No. 1:17cv18, 2017 WL 5589163, at *2 (N.D.W.Va. Mar. 7, 2017).

The law in the Fourth Circuit is clear that, "once a district court determines that a gas company has the substantive right to condemn property under the NGA, the court may exercise equitable power to grant the remedy of immediate possession through the issuance of a preliminary injunction." Sage, 361 F.3d at 828. A preliminary injunction is proper when the plaintiff can "[1] establish that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).²

II. BACKGROUND

On October 13, 2017, FERC granted a Certificate to MVP authorizing construction of a 303.5–mile–long, 42–inch-diameter natural-gas pipeline from Wetzel County, West Virginia, to Pittsylvania County, Virginia ("MVP Project" or "the Project") (Dkt. No. 1–2 at 3).³ The Project also includes three compressor stations in West Virginia and four interconnections along the pipeline's route. Id. at 3–4. The Certificate is subject to various environmental conditions, including those that must be fulfilled before and during construction of MVP's pipeline. Id. at app. C.

MVP must obtain easements along the Project in order to construct its pipeline, and under the appropriate circumstances the NGA grants it the authority to do so by eminent domain. On December 8, 2017, MVP sought to exercise that authority over certain property located in the Northern District of West Virginia, which it could not acquire by agreement, by filing a complaint pursuant to the NGA and Fed. R. Civ. P. 71.1 (Dkt. No. 1). As required by Rule 71.1(c)(2), it included descriptions of the property, as well as the interests to be taken (Dkt. Nos. 1 at 5–7; 1–1; 1–3). On December 13, 2017, MVP filed the following motions: Motion for Partial Summary Judgement and Immediate Access to Survey Parcel ID Nos. 02–4L–19, 02–4L–12 Owned by Arthur C. And Judy Roberts ("Survey Motion") (Dkt. No. 3); Motion for Partial Summary Judgment and Immediate Access to and Possession of the Easements Condemned for Construction of MVP Project ("Possession Motion") (Dkt. No. 5); and Motion for Expedited Hearing on Motions for Partial Summary Judgment and Immediate Access to and Possession of the Easements Condemned (Dkt. No. 7).

Following a status conference on December 21, 2017, the Court set a schedule for discovery and briefing on the Survey Motion and Possession Motion (Dkt. No. 33). The next day, several defendants filed a motion to stay proceedings on MVP's motion for immediate possession, which remains pending (Dkt. No. 31). On December 29, 2017, the Court denied the Survey Motion as moot after being advised by the parties that the motion was no longer in controversy (Dkt. No. 42). The Court subsequently granted MVP's motion for an expedited hearing, and amended the schedule to include a hearing on the Possession Motion (Dkt. No. 43).

Pursuant to Fed. R. Civ. P. 71.1(e)(2), the following defendants asserted objections and defenses by way of an answer: Hilry Gordon, Gerald Wayne Corder, Randall N. Corder, Bryan and Helen Montague Van Nostrand, Charles F. Chong and Rebecca Ann Eneix–Chong, Nancy Shewmake Bates, and William G. Lloyd (Dkt. No. 23–1);⁴ Western Pocahontas Properties LP ("Western Pocahontas") (Dkt. No. 45); ICG Eastern, LLC ("ICG Eastern") (Dkt. No. 48);⁵ George Ernest Bright and William Townsend Bright (Dkt. No. 50); Dale Eastham, Travis Eastham, Brent Fairbanks, David Fairbanks, Michael...