Waldock v. Rover Pipeline, LLC, Court of Appeals No. WD-19-048

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtMAYLE, J.
Citation2020 Ohio 3307
Docket NumberCourt of Appeals No. WD-19-048
Decision Date12 June 2020
PartiesThomas Waldock, Trustee of the Trust Agreement of Thomas A. Waldock, et al. Appellants v. Rover Pipeline, LLC, et al. Appellees

2020 Ohio 3307

Thomas Waldock, Trustee of the Trust Agreement of Thomas A. Waldock, et al. Appellants
Rover Pipeline, LLC, et al.

Court of Appeals No. WD-19-048


June 12, 2020

Trial Court No. 2017-CV-0256


Zachary J. Murry, for appellants.

Gregory D. Brunton, Daniel J. Hyzak, Bruce A. Moore and Thomas Zabel, for appellee Rover Pipeline, LLC.

Sheila A. McKeon and Richard C. O. Rezie, for appellee Precision Pipeline Construction Company.


{¶ 1} Plaintiffs-appellants in this matter are Thomas Waldock, Trustee of the Trust Agreement of Thomas A. Waldock; Kenneth Stearns and Jane M. Stearns, Trustees of the Stearns Family Trust; Valeria V. Nye; Patty J. Stearns, Successor Trustee of the Jack L.

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Stearns Declaration of Trust; Michael J. Stearns, Trustee, under the Trust Agreement of Michael J. Stearns; and Barbara Ann Turley ("appellants"). They appeal the June 5, 2019 judgment of the Wood County Court of Common Pleas, granting summary judgment in favor of defendants-appellees, Rover Pipeline, LLC ("Rover") and Precision Pipeline Construction Company ("Precision"), and denying their cross-motion for partial summary judgment. For the following reasons, we affirm the trial court judgment.

I. Background

{¶ 2} Appellants own approximately 3,300 acres of farmland in Wood County, Ohio. Rover is constructing an interstate natural gas pipeline that stretches from Pennsylvania and West Virginia, across the northern half of Ohio, and into Michigan, requiring access over appellants' property. Precision is one of its contractors.

{¶ 3} On February 6, 2017, after obtaining a certificate of public convenience and necessity from the Federal Energy Regulatory Commission ("FERC") ("the FERC certificate")—as is required to construct an interstate natural gas pipeline—Rover initiated condemnation proceedings under the Natural Gas Act ("NGA"), 15 U.S.C. § 717, et seq. in the U.S. District Court for the Northern District of Ohio against numerous property owners, including appellants. Rover Pipeline, LLC v. Rohrs, et al., N.D.Ohio No. 3:17-cv-00225-JGC. It sought 60-foot wide permanent pipeline easements, temporary workspace easements, surface site easements, and permanent and temporary road access easements across appellants' properties. On March 8, 2017, Rover reached an agreement with appellants whereby they granted Rover immediate possession

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of 60-foot wide non-exclusive permanent easements across their properties and 100-foot wide temporary construction easements on some of the land. The issue of the compensation to be paid to appellants was reserved.

{¶ 4} Upon reaching this agreement with appellants, Rover began construction.1 In the first two months of construction, the area received substantial rainfall. The rain caused storm and groundwater build-up in Rover's easement and dig sites. According to appellants, in addition to this naturally-occurring water, Rover's directional boring operations also caused the build-up of water and various chemicals.

{¶ 5} Appellants maintain that when confronted with this excess water, Rover could have waited for the ground to dry, or it could have dewatered the easement area by pumping water into trucks and hauling it away. Instead, they claim, Rover chose to dewater the easement areas by pumping water and other liquid out of the easements and onto appellants' properties, causing significant flooding and contaminating the land. Appellants contend that in doing so, Rover placed hoses and other equipment on land outside the easements, and in one instance, even pumped water, sediment, and other debris directly into one of the landowner's field tile drainage system.

{¶ 6} On May 5, 2017, appellants sued Rover and Precision in the Wood County Court of Common Pleas, alleging eight causes of action: (1) trespass; (2) nuisance; (3) negligence and hazardous waste; (4) tortious interference with business;

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(5) declaratory judgment; (6) injunction; (7) abuse of power and authority and bad faith; and (8) punitive damages. Appellants claimed that Rover's dewatering activities washed out valuable field crops that had already been planted and prevented further farming operations until the ground is dry enough, rendering it unlikely that the property would be farmable in 2017. They also claimed that horizontal drilling lubricants and other materials have contaminated their land.

{¶ 7} Rover filed a notice of removal in the U.S. District Court for the Northern District of Ohio. Waldock v. Rover Pipeline LLC, N.D.Ohio No. 3:17CV959, 2017 WL 3224573, *1 (July 31, 2017). It argued that the district court had federal-question jurisdiction over appellants' claims because they arose under the NGA. Appellants responded that their claims arose under state law and that Rover was merely asserting a federal defense, which is not grounds for removal. The federal court agreed with appellants. Applying the well-pleaded complaint rule, it held that appellants' claims—as framed in their complaint—did not arise under federal law and there was no federal question jurisdiction. It remanded the matter to state court. The case was reinstated to the docket of the Wood County Court of Common Pleas on August 10, 2017.

{¶ 8} On December 26, 2018, Rover moved for judgment on the pleadings or, alternatively, summary judgment. It argued that appellants' claims are expressly preempted by the plain language of Rover's FERC certificate and the NGA; Rover had an express federal privilege to dewater its pipeline trench onto appellants' property;

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appellants' damages claims are already being litigated in federal court; and appellants' lawsuit is, in fact, one for inverse condemnation, which may be alleged only in a mandamus action.

{¶ 9} Appellants opposed Rover's motion. They argued that their claims arose from Rover's misconduct off the right-of-way, thus their claims are not preempted; they maintained that their claims are distinct from the issues pending in federal court; and they denied that their claims are for inverse condemnation. They also sought summary judgment on their claims for trespass, nuisance, negligence, and tortious interference with business.

{¶ 10} The trial court granted summary judgment in favor of Rover and denied appellants' cross-motion. It concluded that there was a conflict between appellants' state law claims and Rover's privilege under the FERC certificate and other related documents, thus appellants' claims were preempted by the NGA. The court further concluded that Rover abided by the terms of those documents, which authorized it to dewater trenches "either on or off the construction right of way." It acknowledged that appellants may be entitled to compensation for damage to their land and crops, but it held that any claim for such damages must be presented "at the federal level."

{¶ 11} Appellants appealed and assign the following errors for our review:

1. The Trial Court committed reversible error by entering summary judgment in favor of the Defendants-Appellees.

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2. The Trial Court committed reversible error by denying Plaintiffs' Cross-Motion for Partial Summary Judgment where the undisputed facts of the case show that Defendants-Appellees trespassed upon Plaintiffs-Appellants' land.

II. Legal Standard

{¶ 12} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:

(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor.

Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978), Civ.R. 56(C).

{¶ 13} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

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662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A "material" fact is one which would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

III. Law and Analysis

{¶ 14} Appellants claim error in the trial court's decision granting summary judgment in favor of Rover and denying their cross-motion for partial summary judgment. Before addressing the parties' legal arguments, we briefly explain the procedures set forth under the NGA for obtaining approval to construct a natural gas pipeline, and we summarize the details pertinent to Rover's efforts to obtain the FERC certificate at issue here.

A. An entity proposing to build a pipeline must obtain a FERC certificate.

{¶ 15} Congress created FERC in 1977. Grdn. Pipeline, L.L.C. v. 529.42 Acres of Land, 210 F.Supp.2d 971, 973 (N.D.Ill.2002), citing 42 U.S.C. 7171(a). Among other things, FERC is tasked with determining the public necessity for the...

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