Venture Glob. Gator Express v. Land
| Decision Date | 20 September 2021 |
| Docket Number | Civil Action 20-2802 |
| Parties | VENTURE GLOBAL GATOR EXPRESS, LLC v. LAND, ET AL. |
| Court | U.S. District Court — Eastern District of Louisiana |
SECTION “J” (3)
ORDER & REASONS
Before the Court is a Motion for Partial Summary Judgement Confirming Right to Condemn and for Preliminary Injunction for Immediate Possession of Property (Rec. Doc 20) filed by Plaintiff, a Supplemental Memo in Support by Plaintiff (Rec. Doc. 35), an opposition by Defendant (Rec. Doc. 26), and a Supplemental Memo in Opposition by Defendant (Rec Doc. 37). Having considered the motions and legal memoranda, the record, and the applicable law, the Court finds that Plaintiff Venture Global Gator Express, LLC's Motion should be GRANTED.
This action arises from a Notice and Complaint of Condemnation filed October 13, 2020 by Plaintiff Venture Global Gator Express (“Plaintiff” or “Gator Express”) against Captain Zach's Myrtle Grove Properties (“Captain Zach's”) and ESP Louisiana Opportunities (“ESP Louisiana”), both of whom have an interest in the property at issue (“Property”). (Rec. Doc. 1, at 1). Captain Zach's is the landowner and ESP Louisiana is the holder of an option to acquire certain rights in the property (collectively referred to as “Defendants”). Id. at 1-2. Plaintiff brings this action pursuant to a Certificate of Public Convenience and Necessity issued to Plaintiff by the Federal Energy Regulatory Commission (“FERC”). (Rec. Doc. 3, at 2).
FERC authorized Plaintiff to build a pipeline system to transport natural gas from interconnections with existing interstate gas pipeline systems in Louisiana to a liquified natural gas export terminal. (Rec. Doc. 1, at 2). This Certificate was granted September 30, 2019. (Rec. Doc. 20, at 3). The route of the pipeline was approved by FERC and, pursuant to the FERC Certificate, Plaintiff must construct the pipeline across the route depicted. (Rec. Doc. 1, at 8). Plaintiff seeks the condemnation/expropriation of a permanent servitude as well as a temporary workspace across the Property. Id. at 3. On February 26, 2020, Plaintiff sent a demand letter to Captain Zach's seeking to acquire the servitude on and across Captain Zach's property. (Rec Doc. 8-3, at 1). Plaintiff now brings this action because Plaintiff has not been able to come to an agreement with Defendants regarding the pipeline servitude authorized by FERC. (Rec. Doc. 1, at 6).
ESP Louisiana alleges that Plaintiff and Defendants have yet to come to a conventional agreement because Plaintiff fails to take into account ESP Louisiana's investment in the property. (Rec. Doc. 8, at 4). As background, a primary source of ESP Louisiana's revenue is the sale of mitigation credits by the United States Corps of Engineers, the United States Environmental Protection Agency, the United States Fish and Wildlife Service, and the Louisiana Department of Wildlife and Fisheries through Mitigation Banking Instruments, which establish success criteria, operational guidelines and sponsorship responsibilities for the use, operation, protection, monitoring, and maintenance of the mitigation banks. Id. at 8. When developers and landowners begin a project that will impact wetlands, for example, they are required to purchase mitigation credits. Id.
ESP Louisiana and Captain Zach's perfected an option agreement (“Option”) in May 2019, id. at 7, that was duly recorded in the Plaquemines Parish conveyance records on July 7, 2020, id. at 2. The option was for ESP Louisiana to acquire rights to the Property to restore it as required to qualify as a mitigation bank and thus obtain mitigation credits. Id. at 8. ESP Louisiana paid Captain Zach's $300, 000 for the Option, id, and estimates its total losses are at least $1, 920, 000, id. at 10.
Captain Zach's alleges that its losses from Plaintiff's servitude include all lost revenues as the beneficiary under the Option. (Rec. Doc. 9, at 3). Moreover, Captain Zach's alleges that Plaintiff seeks more property than the pipeline servitude calls for because Plaintiff will require continued access to the pipeline to repair, maintain, and relocate it, and thus Plaintiff seeks unlimited rights to traverse Captain Zach's property. Id.
Summary judgment is appropriate when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, a court considers “all of the evidence in the record but refrains from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that “a reasonable jury could not return a verdict for the nonmoving party.” Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would ‘entitle it to a directed verdict if the evidence went uncontroverted at trial.'” Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.” Id. at 1265.
15 U.S.C. § 717f(h). “The statute only requires that the party seeking to condemn be unable to acquire the property by contract or unable to agree on compensation to be paid for the property.” Kan. Pipeline Co. v. 200 Foot by 250 Foot Piece of Land, Located in Section 6, Sw. Quarter, Twp. 32 S., Range 10 W., Cnty. of Barber, State of Kan., 210 F.Supp.2d 1253, 1257 (D. Kan. 2002).
Here, Plaintiff contends that there are only two elements for a claim for condemnation: possession of a FERC Certificate and an inability to acquire the property rights by contract or agreement with the landowner. (Rec. Doc. 20-7, at 4). Defendants do not dispute Plaintiff's possession of a FERC Certificate. (Rec. Doc. 26, at 16). Defendants challenge (1) the characterization of a portion of the proposed servitude as “temporary” instead of “permanent” and (2) that Plaintiff negotiated in good faith. Id.
First, Defendants argue that the “Temporary Workspace Servitude” that Plaintiff proposes is, in fact, permanent because “[m]ost of the rights [Plaintiff] seeks involve the right to do things in the future which will necessarily require the future use of the 9.018 Temporary Workspace on an as-needed basis.” (Rec. Doc. 26, at 18).[1] Without taking a deep dive into Louisiana Property Law, specifically the law of servitudes, the Court notes two Code Articles: 744 and 745. First, “[t]he owner of the dominant estate has the right to make at his expense all the works that are necessary for the use and preservation of the servitude.” La. Civ. Code. Art. 744. And second, “[t]he owner of the dominant estate has the right to enter with his workmen and equipment into the part of the servient estate that is needed for the construction or repair of works required for the use and preservation of the servitude.” La. Civ. Code art. 745. Although these articles are subject to the written contract between the parties, these are the most basic rights of dominant estate holders under Louisiana servitude law. Here, Plaintiff's so-called “permanent rights” are simply a more specific recitation of their rights as the dominant estate holder. The “Temporary Workspace Servitude” is properly named and does not give Plaintiff permanent rights beyond those necessary to use and preserve the permanent servitude requested.
Second Louisiana Revised Statute § 19:2 requires that “[p]rior to filing an expropriation suit, an expropriating authority shall attempt in good faith to reach an agreement as to compensation with the owner of the property sought . . ., ” and ESP Louisiana's property interests, even though only an option to purchase, are protected because “the term ‘property' means immovable property, including servitudes and other rights in or to immovable property.” La. R.S. § 19:1. In expropriation suits, the good faith requirement “is met if there is evidence that the expropriating authority has made a bona fide effort to obtain the...
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