Ralph Loyd Martin Revocable Trust Declaration Dated First Day of April 1994 v. Ark. Midstream Gas Servs. Corp.
Decision Date | 09 December 2010 |
Docket Number | No. 10–192.,10–192. |
Citation | 2010 Ark. 480,377 S.W.3d 251 |
Parties | The RALPH LOYD MARTIN REVOCABLE TRUST DECLARATION DATED the FIRST DAY OF APRIL 1994; Ralph Loyd Martin, Trustee of the Ralph Loyd Martin Revocable Trust Declaration Dated the First Day of April 1994; The Festus Mary Martin Revocable Trust Declaration Dated the First Day of April 1994; and Festus Mary Martin, Trustee of the Festus Mary Martin Revocable Trust Declaration Dated the First Day of April 1994, Appellants v. ARKANSAS MIDSTREAM GAS SERVICES CORPORATION, Appellee. |
Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Morgan Law Firm, P.A., Clinton, by: M. Edward Morgan and Hiland Law Firm, P.A., by: J. Cody Hiland, Conway, for appellant.
Daily & Woods, P.L.L.C., Fort Smith, by: Jerry L. Canfield, for appellee.
Appellants, The Ralph Loyd Martin Revocable Trust Declaration Dated The First Day Of April 1994; Ralph Loyd Martin, Trustee Of The Ralph Loyd Martin Revocable Trust Declaration Dated The First Day Of April 1994; The Festus Mary Martin Revocable Trust Declaration Dated The First Day Of April 1994; and Festus Mary Martin, Trustee Of The Festus Mary Martin Revocable Trust Declaration Dated The First Day Of April 1994 (collectively, “the Martin Trusts”), appeal the order of the White County Circuit Court directing that Appellee Arkansas Midstream Gas Services Corporation (“Midstream”) take possession of a certain part of the Martin Trusts' land pursuant to the power of eminent domain to construct and maintain a pipeline for the gathering of natural gas. On appeal, the Martin Trusts challenge the constitutionality of the delegation of the power of eminent domain to Midstream. Jurisdiction is properly in this court pursuant to Ark. Sup.Ct. R. 1–2(a)(1) (2010). We have recently rejected the arguments raised in this appeal and accordingly affirm the order of the circuit court.
Midstream is an Arkansas corporation presently engaged in the construction of a gathering pipeline for the transmission of natural gas across certain lands in White County. It is a wholly owned subsidiary of Chesapeake Energy Corporation, which is an Oklahoma corporation that engages in the exploration and production of oil and gas in the Fayetteville Shale formation. The Martin Trusts own approximately 150 acres of real property located in Section Twelve (12), Township Seven (7) North, Range Eight (8) West, White County. According to the Martin Trusts, the property has long been held by the Martin family and maintained in pristine form; the Trusts' land contains a pond, a creek, and many large and aged hardwood trees, as well as an abundance of various wildlife.
Midstream attempted to negotiate a right-of-way agreement with the Martin Trusts for the purpose of constructing and maintaining a natural gas gathering pipeline across a portion of the Martin Trusts' land. The Martin Trusts maintained below that the proposed pipeline would damage the land irreparably because it would require the removal of 100–year–oldtrees that provide a privacy screen. After Midstream's negotiations with the Martin Trusts proved unsuccessful, Midstream relied on the authority of the Public Utilities Code, Ark.Code Ann. § 23–15–101 (Repl.2002), and the Eminent Domain Code, Ark.Code Ann. § 18–15–1303 (Repl.2003), and petitioned the White County Circuit Court on June 2, 2008, to assert the power of eminent domain to condemn a portion of the Martin Trusts' property to acquire a permanent pipeline easement of sixty feet and a temporary construction easement of fifteen feet on the north side of the permanent easement.
On July 28, 2008, the Martin Trusts moved to dismiss Midstream's eminent-domain action, alleging that Midstream did not have the authority to exercise the right of eminent domain for two reasons: (1) because Midstream was seeking to acquire property for private rather than public use in violation of the Arkansas Constitution, article 2, section 22; and (2) because section 23–15–101 was unconstitutionally void for vagueness in that it did not contain any legal standards to determine whether a pipeline is being constructed by a common carrier for a public purpose.
On July 31, 2008, the circuit court held a hearing on the motion to dismiss. At that hearing, the circuit court also heard arguments on two other eminent-domain petitions filed by Midstream. In one of those cases, which has since been affirmed on appeal to this court, Smith v. Arkansas Midstream Gas Services Corp., 2010 Ark. 256, 377 S.W.3d 199, Midstream had sought a declaration from the Arkansas Public Service Commission (“PSC”) that a certificate of convenience and necessity (“CCN”) was not required for the construction and operation of natural gas gathering pipelines. Those proceedings resulted in a declaration that “the gathering pipeline system Arkansas Midstream is proposing to build and operate in White County in this matter is not a pipeline system that falls within the regulatory ambit of the Arkansas Public Service Commission insofar as a CCN is required for it to be constructed and operated.” Thus, for purposes of the hearing on the Martin Trusts' motion to dismiss, the parties in the present case entered into a stipulation of facts, which was based in part on the facts stipulated to in Midstream's declaratory proceedings before the PSC in the Smith case. The parties sought and received permission from this court to supplement the record in this case with the PSC proceedings in the Smith case.
After the hearing on the Martin Trusts' motion to dismiss, the circuit court took the matter under advisement and then issued a letter ruling on August 7, 2008, finding that Midstream had the constitutional and statutory right to condemn a portion of the Martin Trusts' private property for the public use of gathering natural gas for shipment to larger pipelines. The Martin Trusts moved for a stay of that ruling, and after conducting a hearing on that motion, the circuit court entered its written order containing its findings of fact and conclusions of law on December 18, 2008.
In its December 18 order, the circuit court reiterated its finding that Midstream had the constitutional and statutory power of eminent domain to condemn the Martin Trusts' private property for public use, and that the gathering of natural gas for shipment to larger pipelines carrying gas to market was a public use. Accordingly, the order granted Midstream the immediate right of entry onto, and the possession of, the sixty-foot permanent easement and the fifteen-foot temporary easement on the Martin Trusts' land as requested in Midstream's petition. The order directed Midstream to tender $15,850 into the registry of the court as a just-compensation deposit and granted the Martin Trusts a jury trial to determine just compensation. In addition, the order also granted the Martin Trusts' motion for supersedeas and stayed the order of possession pending appeal, on condition that the Martin Trusts post a supersedeas bond of $25,000 to protect Midstream from any damages sustained by the delay of the pipeline.
The Martin Trusts appealed to this court, but because the order failed to set out the factual underpinnings as to why a hardship or injustice would result if an immediate appeal were not permitted, we dismissed without prejudice for lack of jurisdiction due to noncompliance with Ark. R. Civ. P. 54(b)(1). SeeRalph Loyd Martin Revocable Trust v. Ark. Midstream Servs. Corp., 2009 Ark. 563, 2009 WL 3789087. An amended order in full compliance with Rule 54(b) was entered on December 16, 2009. The Martin Trusts now assert that the circuit court erred in ruling that its property was taken in a manner consistent with the Arkansas Constitution. The Martin Trusts make two arguments in support of this assertion, both of which we have recently rejected in similar cases.
For its first point on appeal, the Martin Trusts contend that the circuit court erred in ruling that the General Assembly had properly delegated its power of eminent domain to Midstream for the purpose of constructing a pipeline for the gathering of natural gas. The Martin Trusts argue that the delegation of the sovereign's eminent-domain power to pipeline companies in sections 23–15–101 and 18–15–1303 are “utterly without any standard, required use, or purpose” and therefore unconstitutionally vague in violation of the right to due process. Specifically, the Martin Trusts argue that section 23–15–101 does not provide any fixed standard for determining what is a “pipeline company,” and fails to distinguish those companies laying pipe for a wholly private interest from those laying pipe for public use. The Martin Trusts argue further that the statute fails to even require that the property taken be used for the construction of a pipeline. The vagueness issue caused by this lack of standards, argue the Martin Trusts, is exacerbated by the lack of regulation and opportunity for comment by the landowners. Finally, relying on Justice Hickman's dissent in Young v. Energy Transportation Systems, Inc. of Arkansas, 278 Ark. 146, 644 S.W.2d 266 (1983), the Martin Trusts assert that this standardless delegation of the eminent-domain power will lead to abusive and unconscionable takings of private property.
This court has recently rejected a landowner's void-for-vagueness challenge to section 23–15–101 in Smith, 2010 Ark. 256, 377 S.W.3d 199. We did so on the basis that the landowners making the vagueness challenge lacked standing. We stated as follows:
The Smiths' vagueness argument is without merit. As an initial matter, we question whether the Smiths have standing to assert a vagueness challenge to section 23–15–101. This court has recognized that a law is unconstitutionally vague if it “either forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess at its meaning and differ as to its application.” Benton County Stone Co., Inc. v....
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