Tennessee Gas Pipeline v. 104 Acres of Land

Decision Date16 July 1993
Docket NumberCiv. A. No. 89-0780,89-0782.
Citation828 F. Supp. 123
PartiesTENNESSEE GAS PIPELINE CO., Plaintiff, v. 104 ACRES OF LAND, MORE OR LESS, IN PROVIDENCE COUNTY OF The STATE OF RHODE ISLAND, et al., Judith B. Moreau, Walter R. and Clara J. Lawrence, Defendants.
CourtU.S. District Court — District of Rhode Island

Peter V. Lacouture, Christine M. Gravelle, Paul M. Sanford, Fran R. Robins-Liben, Tillinghast, Collins & Graham, Providence, RI, for plaintiff.

Robert S. Bruzzi, Law Offices of Robert S. Bruzzi, Providence, RI, Morton L. Simons, Barbara M. Simons, Simons & Simons, Washington, DC, for defendants Lawrence and Moreau.

OPINION

FRANCIS J. BOYLE, Senior District Judge.

Plaintiff Tennessee Gas Pipeline Co. (Tennessee Gas) brought eminent domain proceedings against Defendants Judith Moreau and Walter and Clara Lawrence to obtain interests in their land in order to construct and maintain a natural gas pipeline. Plaintiff changed the route of its pipeline and dismissed the eminent domain proceedings against the defendants. Defendants have moved for attorney's fees, pursuant to the Uniform Relocation Assistance and Real Property Acquisition Policies Act (Relocation Act), 42 U.S.C. § 4601 et seq.

FACTS

In November, 1986, Tennessee Gas applied to the Federal Energy Regulatory Commission (FERC) under the provisions of the Natural Gas Act (the Act), 15 U.S.C.A. 717f(c), for a certificate of public convenience and necessity to condemn certain property in order to construct and operate a pipeline from its Massachusetts facility to a termination point in Cranston, Rhode Island. At the outset of this litigation the plaintiff did not seek to condemn any property interest of the defendants. Later, due to changes in the routing an easement was sought in the Lawrence property. Later still the plaintiff dismissed the action involving the Lawrence property and sought to condemn a site and an easement on the Moreau property. FERC was notified of the proposed changes in the pipeline route by letter in or about May, 1988.

Shortly after revising the pipeline route, Tennessee Gas met with Defendant Moreau in an attempt to purchase an easement which was needed for construction of the pipeline. Ms. Moreau advised Tennessee Gas that her property had historical significance and was eligible for registration on the National as well as the State Registers of Historic Places. Moreau told Tennessee Gas that she was not interested in selling her property or granting an easement for construction of the pipeline.

In May, 1989, FERC approved Tennessee Gas' initial pipeline route. Upon learning of this order, Moreau sought to intervene in the proceedings before the FERC. During this same period, Tennessee Gas sought to have the 1989 order modified to include the revisions it had made to the pipeline route in 1988. Before FERC could act on Tennessee Gas' motion to amend, Tennessee Gas filed an action in this court, seeking a condemnation order for that portion of the Moreau property needed for the pipeline construction.

In September, 1990, FERC granted Tennessee Gas' motion to amend its pipeline route. This modification routed the pipeline around the Lawrence property and through that of Moreau. Moreau moved for and was granted a rehearing by FERC. In November, 1990, this court issued an order condemning a portion of the Moreau property. Moreau appealed to the First Circuit Court of Appeals.

In July, 1991, Tennessee Gas notified Moreau that it was seeking approval of another change in the pipeline route which would reroute the pipeline around her property. The First Circuit dismissed Moreau's appeal as premature because FERC was actively reconsidering the pipeline route. In September, 1991, FERC approved Tennessee Gas' second revision to its pipeline route. On April 13, 1992, pursuant to Fed.R.Civ.P. 71A(i)(1), Tennessee Gas dismissed its condemnation actions against the Moreau and Lawrence properties.

The defendants seek costs and attorneys' fees based on the Real Property Acquisition Policy Act of 1970, 42 U.S.C. § 4654 (1983), Rule 11 of the Federal Rules of Civil Procedure, and Section 1927 of the Judicial Code, 28 U.S.C. § 1927 (West Supp.1993). Defendants claim that jointly they are entitled to $85,310.00 for fees. Plaintiff has also moved for costs and attorney's fees in the amount of $500.00.

DISCUSSION

Turning first to the defendants' motion for fees. There is no basis for fees under Rule 11 of the Federal Rules of Civil Procedure or Section 1927 of the Judicial Code because defendants have not presented any evidence of unnecessary multiplication of proceedings or bad faith by Tennessee Gas. Defendants' claim of fees under the Relocation Act does, however, present more difficult issues. Defendants' fee request under the Relocation Act raises two questions: (1) Whether the Relocation Act is applicable to Tennessee Gas and, if so, (2) Whether Defendants have satisfied the requirements for establishing reasonable attorney's fees as required.

The regulation of natural gas companies is governed by the Natural Gas Act (the Act). 15 U.S.C. § 717 et seq. Section 717f(c) of the Act states:

No natural-gas company ... shall ... undertake the construction or extension of any facilities for 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.A. § 717f(c)(1)(A) (West Supp.1993). The Act authorizes natural gas companies to condemn specific land. Section 717f(h) of the Act, entitled Right of Eminent Domain for Construction of Pipelines, Etc., provides that:

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, a 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.

15 U.S.C.A. 717f(h) (1976). The Act has been viewed as vesting private companies with the power to acquire land by an exercise of the federal power of eminent domain. Thatcher v. Tennessee Gas Transmission Co., 180 F.2d 644, 648 (5th Cir.1950), cert. denied, 340 U.S. 829, 71 S.Ct. 66, 95 L.Ed. 609 (1950); see also Transcontinental v. 118 Acres of Land, 745 F.Supp. 366 (E.D.La. 1990); Columbia Gas Transmission Corp. v. An Exclusive Gas Storage Easement, et al., 578 F.Supp. 930, 933 (N.D.Ohio 1984), aff'd 776 F.2d 125 (6th Cir.1985); Tennessee Gas Transmission Co. v. Cleveland Trust Co. et al., 67 Ohio Law Abs. 264, 120 N.E.2d 143, 144 (1953). Thus, in limited circumstances, the Act confers upon natural gas companies the power of eminent domain. Tennessee Gas' complaints sought condemnation of interests in the Moreau and Lawrence properties. Tennessee Gas asserted that, by virtue of Section 717f(h), it possessed the right to acquire the properties by eminent domain.

The defendants argue that they are entitled to be reimbursed under the provisions of the Relocation Act. The manner in which the government acquires private property for public use "is governed, to some extent by the Uniform Relocation Assistance and Real Property Acquisition Act of 1970, 42 U.S.C. § 4601 et seq." Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 5-6, 104 S.Ct. 2187, 2192, 81 L.Ed.2d 1 (1984). The judicial history of the act is significant. Section 4621(b) states the policy of the Act with respect to relocation assistance:

This subchapter establishes a uniform policy for the fair and equitable treatment of persons displaced as a direct result of programs or projects undertaken by a Federal agency or with Federal financial assistance. The primary purpose of this subchapter is to ensure that such persons shall not suffer disproportionate injuries as a result of programs and projects designed for the benefit of the public as a whole and to minimize the hardship of displacement on such persons.

42 U.S.C.A. § 4621(b) (West Supp.1993).

The Act provides for benefits to displaced persons for such expenses as moving and relocation and personal property lost as a result of the displacement. Much of the litigation which took place had to do with persons displaced by residential developments which although encouraged by the government were essentially private developments. See Austin v. Andrus, 638 F.2d 113 (9th Cir.1981); Dawson v. HUD, 592 F.2d 1292 (5th Cir.1979); Conway v. Harris, 586 F.2d 1137 (7th Cir.1978).

In Moorer v. HUD, 561 F.2d 175, 181-182 (8th Cir.1977), cert. denied 436 U.S. 919, 98 S.Ct. 2266, 56 L.Ed.2d 760 (1978), the court pointed out a number of efforts to amend the Act to include persons displaced as beneficiaries of the Act where the developer was not a governmental entity but a private developer of Federally assisted projects. The effort was finally successful in 1987 with the enactment of the Uniform Relocation Act Amendments of 1987 (Relocation Act Amendments). Congress chose to make those private developers who had authority to acquire property by eminent domain under Federal law subject to the same obligations to displaced persons as governmental entities. Section 4601(1) of the Relocation Act defines the term "Federal agency". Federal agency is defined as:

any department, agency or instrumentality in the executive branch of the Government, any wholly owned Government corporation, the Architect of the Capitol, the Federal Reserve Banks and branches thereof, and any person who has the authority to acquire property by eminent domain under Federal law. (Emphasis added)

42 U.S.C.A. § 4601(1) (West Supp.1993). The inclusion of the language "any person who has the authority to acquire property by eminent domain under Federal law" was added to Section 4601(1) by the Uniform...

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