Tex. Gas Transmission, LLC v. 18.08 Acres
| Decision Date | 06 December 2012 |
| Docket Number | CIVIL ACTION NO. 2:08CV240-B-V |
| Parties | TEXAS GAS TRANSMISSION, LLC PLAINTIFF v. 18.08 ACRES +/- IN SOUTHEAST QUARTER OF SECTION 24, TOWNSHIP 30, NORTH, RANGE 4 WEST, COAHOMA COUNTY, MISSISSIPPI; AND THE BOARD OF LEVEE COMMISSIONERS FOR THE YAZOO-MISSISSIPPI DELTA DEFENDANTS |
| Court | U.S. District Court — Northern District of Mississippi |
This cause comes before the court for ruling after a bench trial held on September 10-12, 2012. After consideration of the testimony, evidence, and exhibits presented at trial and the proposed findings of fact and conclusions of law submitted by the parties, the court is ready to rule and finds as follows:
The Parties
The plaintiff condemnor Texas Gas Transmission ("Texas Gas") is a limited liability company engaged in the transportation of natural gas in interstate commerce and, as such, is a "natural gas company" under the Natural Gas Act. 15 U.S.C. § 717(b). The defendant Board of Levee Commissioners of the Yazoo-Mississippi Delta ("Levee Board") owns in fee the approximately ninety-eight miles of mainline Mississippi River levee starting just south of Memphis, Tennessee, and running through the Mississippi counties of DeSoto, Tunica, and Coahoma to the Bolivar County, Mississippi line. Part of the ninety-eight miles of levee is a 254.53 acre tract in Coahoma County, which is the subject of this condemnation case.
The court has subject matter jurisdiction of this action under 28 U.S.C. § 1331, as the action arises under the laws of the United States, under 28 U.S.C. § 1337, as the action arises under an Act of Congress regulating interstate commerce, and under 15 U.S.C. § 717f(h), which is the eminent domain jurisdictional provision of the Natural Gas Act, 15 U.S.C. §§ 717-717z.
On May 2, 2008, the Federal Energy Regulatory Commission ("FERC") issued an order granting a Certificate of Public Convenience and Necessity authorizing the construction and operation of an approximately 166-mile interstate natural gas pipeline and related transmission facilities beginning in northern Arkansas and ending near the community of Lula in Coahoma County, Mississippi. The route approved by FERC required the pipeline to cross the Mississippi River and the Mississippi River levees south of Helena, Arkansas, and in Coahoma County.
Texas Gas filed this in rem action on November 12, 2008, pursuant to 15 U.S.C. § 717f(h), and Federal Rule of Civil Procedure 71.1, seeking condemnation of a fifty-foot wide, permanent easement across the Levee Board property, consisting of 1.78 acres through which the pipeline runs, and an additional 9.02 acre two-year temporary workspace needed for the construction and maintenance of the pipeline. Shortly thereafter, the parties entered into a permit and agreement for the construction and operation of the pipeline. Upon the parties' motion, the court stayed the action pending an agreement between the parties regarding compensation. The parties were unable to reach an agreement, and the case was restored to the active docket. Texas Gas then filed an amended complaint referencing the permit and agreement and correcting the erroneous legal description of the subject property contained in the original complaint. By thedate of the trial, the pipeline had been constructed and was in operation, and the temporary workspace had reverted to the defendant. The only issue before the court is the proper amount of compensation to which the Levee Board is entitled.
The Texas Gas design and geotechnical engineering team worked with the Levee Board's engineers, Kelly Greenwood and Bill Shepard, and the U.S. Army Corps of Engineers to design the pipeline crossing. Texas Gas project manager and senior design engineer, Michael Smith, directed and oversaw the design and the earthworks to be constructed over the levee. Texas Gas utilized professional engineer David Sauls and his geotechnical engineering firm Louis J. Capozzoli and Associates (now GeoEngineers, Inc.), to test and evaluate the stability of the earthworks design.
Texas Gas's original proposed design of the crossing included the use of horizontal directional drilling, a construction technique that would place the constructed pipeline approximately 150 feet below the levee structure on the Levee Board's property. The Levee Board rejected this design and required that the pipeline be constructed over the top of the levee. Texas Gas presented the Levee Board with a design calling for the pipeline to be constructed directly on top of the levee with approximately three feet of dirt added above the pipeline as cover. This design is a typical pipeline crossing design and has been utilized in various instances, including a natural gas pipeline crossing of the Mississippi River levee in Greenville, Mississippi, and in the very pipeline at issue here where it crosses the western Mississippi River levee south of Helena, Arkansas. This initial design was approved by the U.S. Army Corps ofEngineers, as it satisfied the Corps' design and stability criteria. The Levee Board, however, rejected the design and required a number of modifications.
Levee Board engineer Bill Shepard provided Texas Gas with a crater analysis model and requested that Texas Gas perform calculations of the depth and width of a hypothetical crater which could potentially be formed in the event of a catastrophic rupture of the pipeline. Texas Gas complied and estimated, based on the model, that a potential crater from a hypothetical catastrophic rupture would be 5.1 feet below the bottom of the pipeline and 30.2 feet in diameter, or 15.1 feet on each side of the pipeline. Based on this estimation, the Levee Board then required that the final design of the pipeline crossing maintain a minimum of six feet of fill between the top of the original levee and the bottom of the pipeline and a minimum of four feet of fill placed on top of the pipeline as cover. The Levee Board's stated purpose in requiring this additional fill was to protect the levee itself in the event of a pipeline rupture.
Texas Gas provided several proposed designs incorporating the aforementioned considerations. Shepard then made specific design modifications to the grade and contours of the earthworks in the proposed designs. Included in these modifications was the Levee Board requirement that berms be added to the sides of the levee to provide a slope stability factor of safety of 1.30 or better, which is the U.S. Army Corps of Engineers requirement for slope stability. The final design of the levee pipeline crossing was approved by both the U.S. Army Corps of Engineers and the Levee Board.
After the final design was approved by the Levee Board, the parties entered into a Permit and Agreement for Construction and Operation of Natural Gas Pipeline on November 24, 2008. [Trial Exhibit P-4]. The permit allowed Texas Gas to proceed with construction of the pipelinein accordance with the approved design. The permit granted Texas Gas the permanent easement and temporary work space to construct, own, and operate the pipeline and also imposed upon Texas Gas certain perpetual obligations including a broad indemnity provision.
The Department of Transportation, Office of Pipeline Safety, regulates interstate natural gas pipeline design, construction, operation, and maintenance. The regulations governing natural gas pipelines are codified at 49 C.F.R. Part 192. Texas Gas Project Manager and Senior Design Engineer, Michael Smith, oversaw the design and construction of the pipeline and earthworks associated with the levee crossing. He testified that this design and construction exceeded requirements of the federal regulations governing natural gas pipelines. For instance, regulations require use of pipe with a wall thickness of .536 inches. Texas Gas designed and constructed the pipeline at issue here with a wall thickness of .750 inches. The court finds that the design of the pipeline meets or exceeds the applicable requirements for the design of interstate natural gas pipelines.
Construction of the additional earthworks in accordance with the final crossing design added thirteen additional feet of height to the levee, with six feet of fill between the 36-inch pipeline and four feet of cover above the pipeline. The six feet of fill beneath the pipeline prevents the pipeline from touching the original levee. The earthworks construction resulted in the addition of over 67,000 cubic yards of fill dirt which was selected by the Levee Board's engineer, Bill Shepard, and taken from the usual source of dirt used by the Levee Board for making repairs and maintaining the levee.
Mr. Smith testified that the pipeline underwent inspections through all phases of the construction process. These inspections demonstrated that the construction of the pipeline metor exceeded all required specifications. The Levee Board approved the final construction and raised no complaints with Texas Gas related to the design or construction of the crossing with the exception of requiring Texas Gas to re-seed certain areas of the levee with grass seed that did not take initially.
The Levee Board does not dispute that the pipeline crossing met or exceeded applicable federal regulations or that the design and construction of the earthworks was completed in accordance with the designs and specifications required by the Levee Board and the U.S. Army Corps of Engineers. The parties disagree, however, as to whether the construction of the pipeline crossing the levee adversely affects the functionality of the levee for flood control purposes. The court finds that the permanent right of way and temporary work space and the construction of the pipeline crossing the levee do not adversely affect the use of the subject property for agricultural or levee purposes.
The permanent easement acquired by Texas Gas is 1.78 acres. The temporary workspace is 9.02...
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