Portland Nat. Gas Trans. Sys. v. 4.83 Acres of Land, Civil No. 98-436-JM.

• Decision Date: 03 November 1998
• Docket Number: Civil No. 98-436-JM.
• Citation: 26 F.Supp.2d 332
• Parties: PORTLAND NATURAL GAS TRANSMISSION SYSTEM v. 4.83 ACRES OF LAND, et al.
• Court: U.S. District Court — District of New Hampshire

Page 332

26 F.Supp.2d 332

PORTLAND NATURAL GAS TRANSMISSION SYSTEM v. 4.83 ACRES OF LAND, et al.

Civil No. 98-436-JM.

United States District Court, D. New Hampshire.

November 3, 1998.

Michael D. Ramsdell, David A. Garfunkel, Gallagher, Callahan & Gartrell, Concord, NH, for Plaintiff.

Frederick W. Martin, Dedham, MA, pro se.

ORDER

MUIRHEAD, United States Magistrate Judge.

Before me in this condemnation action under the Natural Gas Act, 15 U.S.C. § 717f(h), are the following motions filed by defendant Frederick W. Martin: a motion for a 90-day letter (document no. 9); a motion for relief (document no. 7), a motion to dismiss under Fed.R.Civ.P. 12(h)(3) (document no. 20); and a motion for a preliminary injunction, entitled "Motion for Alternate Temporary Restraining Order" (document no. 23). For the following reasons, all four motions are denied.

Background

The following facts are undisputed. Mr. Martin owns the strip of land at issue, approximately 4.83 acres, which is part of a larger parcel of cleared and wooded farm land. Plaintiff ("Portland Gas") is a Maine partnership that holds certificates of public convenience and necessity, issued by the Federal Energy Regulatory Commission ("FERC") in 1997.

Portland Gas instituted this eminent domain action by depositing money with the court and filing a verified complaint in condemnation against the property. Portland Gas seeks to obtain temporary easements for the purpose of constructing a natural gas pipeline, and to obtain a permanent easement for the purpose of operation and maintenance of the pipeline and related facilities.

On July 21, 1998, Portland Gas obtained an Order (document no. 4) granting its ex parte motion for immediate entry and possession. A request for reconsideration of that Order was denied on September 17, 1998 (document no. 10). Mr. Martin thereafter filed his first motion for a temporary restraining order ("TRO") and for other preliminary injunctive relief, which was denied in an Order (document no. 19) issued on September 24, 1998.

After the motion for a TRO was denied, Portland Gas actually took possession of the easements by bringing heavy equipment onto Mr. Martin's land, cutting down trees, excavating soil, burying a pipe, and bulldozing a road on the strip of land at issue. See Affidavits of Fred W. Martin (dated Oct. 9, 1998 & Oct. 19, 1998) (document nos. 24 and 28). According to Mr. Martin, a Portland Gas representative told him on October 19, 1998 that the "pipe would be past [his] property by October 28." Affidavit of Fred W. Martin (Oct. 19, 1998).

Analysis

I. Motion under Rule 12(h)(3) and Motion for Relief

In his motion to dismiss for lack of subject matter jurisdiction under Rule 12(h)(3), Mr. Martin contends that Portland Gas obtained a right of entry and possession in July 1998, before it complied with a condition of its FERC certificate known as "Condition 31," and before FERC had complied with the National Historic Preservation Act, 16 U.S.C. § 470f.¹ As a result, this court lacked authority to grant a right of entry and possession to Portland Gas in July 1998 and presently lacks subject matter jurisdiction over the action. Mr. Martin makes essentially the same arguments in his motion for relief.

Condition 31 is one of more than sixty environmental conditions relating to the construction and operation of the gas line project (covering, among other things, wetland mitigation, wellhead protection, cultural resources, fisheries, erosion controls, and a hazardous materials inventory), which FERC included in an appendix to the certificate. Condition 31 directs Portland Gas to defer construction, among other things, until it files with the Secretary of FERC certain information about cultural and historic resources.²

There is no dispute that Portland Gas began construction on Mr. Martin's land after FERC acknowledged that Portland Gas had satisfied the requirements of Condition 31. Portland Gas received a letter from FERC dated August 20, 1998, notifying it of FERC's determination that Portland Gas had complied with Condition 31. Portland Gas actually entered the property and began cutting trees and clearing Mr. Martin's land more than a month after the August 20, 1998 letter was issued.

a. Subject Matter Jurisdiction

Mr. Martin is mistaken in contending that subject matter jurisdiction is contingent on compliance with the pre-construction conditions of the FERC certificate. The federal statute providing a cause of action to Portland Gas to pursue a condemnation action in federal district court does not contain any such limitation. A holder of a FERC certificate may bring an action in federal district court to acquire land by eminent domain if it cannot acquire the land by contract or agree on the purchase price with the landowner. See 15 U.S.C. § 717f(h).

Since Mr. Martin has not agreed to allow Portland Gas, a holder of a FERC certificate, to acquire the land at issue, Portland Gas was entitled to initiate this action under section 717f(h). Accordingly, the district court has subject matter jurisdiction over the action pursuant to 15 U.S.C. § 717f(h) and 28 U.S.C. § 1331. Portland Gas's delayed compliance with Condition 31 is not a basis for dismissing this action under Fed.R.Civ.P. 12(h)(3).

b. Right to Enter and Possess

The issuance of an order granting Portland Gas a right to enter and possess before Portland Gas complied with Condition 31 was within the court's authority. Courts have concluded that a landowner cannot use a FERC certificate-holder's alleged non-compliance with the conditions in the certificate to prevent a taking of private property by eminent domain. See, e.g., Tennessee Gas Pipeline Co. v. 104 Acres of Land, 749 F.Supp. 427, 433 (D.R.I.1990) ("Tennessee Gas I").

In Tennessee Gas I, the court considered whether a gas pipeline company's failure to obtain a permit required by a FERC order prevented it from condemning land. The court concluded that, absent a stay issued by FERC, "the lack of a required permit does not prevent condemnation of land in preparation for construction." 749 F.Supp. at 433. The First Circuit denied Mr. Martin's request for a stay. Mr. Martin has not requested a stay from the D.C. Circuit and, therefore, has not obtained such a stay. In sum, there is no authority for this court to vacate its order granting Portland Gas an immediate right of entry and possession.

Mr. Martin contends that the holding in United States v. 162.20 Acres of Land, 639 F.2d 299, 305 & n. 4 (5th Cir.1981), upon which Tennessee Gas I relies, does not apply to Portland Gas, a private entity. The court in 162.20 Acres reasoned that since the initiation of an eminent domain proceeding and an immediate transfer of title is a neutral act that does not prevent the government from later complying with the consultation and review requirements of the National Historic Preservation Act, 16 U.S.C. § 470f, an allegation that an agency has not complied with the Act cannot be a defense in an eminent domain action. See 162.20 Acres, 639 F.2d at 305; accord United States ex rel. TVA v. Three Tracts of Land, 415 F.Supp. 586, 588 (E.D.Tenn.1976).

According to Mr. Martin, the rationale for 162.20 Acres does not apply in this case because Portland Gas, a private entity, is not entitled to an immediate transfer of title under any federal law. Since State law, N.H.Rev.Stat. Ann. ("RSA") 371:15, V, provides a holder of a FERC certificate with a right to such a "quick take," it is irrelevant whether or not such a right is available under federal law.

RSA 371:15, V, provides that after initiating an eminent domain proceeding, the pipeline company may immediately "enter upon and take possession of the real estate upon providing such security as justice may require to pay any damages occasioned by the entry." Pursuant to RSA 371:15, V, and in accordance with 15 U.S.C. § 717f(h), this court had the authority to grant Portland Gas's motion for immediate entry and possession, without reference to whether it had complied with pre-construction conditions.

Mr. Martin contends that the procedures specified in RSA 371:15, V, are available only to pipeline companies that file their actions in State court under RSA 371:15, I, and are not available to companies that file in federal court under 15 U.S.C. § 717f(h). The Natural Gas Act, however, provides that "[t]he practice and procedure in any action or proceeding in the district court ... shall conform as nearly as may be with the practice and procedure in [a] similar action or proceeding in the courts of the State where the property is situated...." 15 U.S.C. § 717f(h). RSA 371:15, V, is thus properly construed in this context to provide the same substantive right to a quick take, whether the forum is a State or federal court.

Therefore, the principle underlying 162.20 Acres and Tennessee Gas I applies in this case. Compliance with FERC conditions cannot be used as a defense to the right of eminent domain and cannot be cited to divest the court of the authority to grant immediate entry and possession to the holder of a FERC certificate. Because Portland Gas followed the pertinent procedures required under RSA 371:15, V, it was entitled to an order granting it the right to immediate entry. The court had the requisite authority to grant Portland Gas's motion and will neither dismiss the case nor vacate the July 1998 Order.

II. Motion for 90-Day Letter

In his motion for a 90-day letter, Mr. Martin seeks an order requiring Portland Gas to provide him with written notice before requiring him to move his farming operation from the land at issue, in accordance with 42 U.S.C. § 4651(5) and certain regulations. In addition, Mr. Martin seeks an order "remov[ing]" Portland Gas "from possession of" the easements. Mr. Martin maintains that he harvests timber from a larger parcel of land that includes the property at issue, so that the property at issue qualifies as a "farm...